Results 1 to 12 of 12

Thread: 4th Amendment what if, from Judge Napolitano. What if FedGov fears freedom? TWT

  1. #1
    Regular Member
    Join Date
    Feb 2013
    Location
    Thru Death's Door in Wisconsin
    Posts
    13,147

    4th Amendment what if, from Judge Napolitano. What if FedGov fears freedom? TWT

    "[ ... ]
    What if, in order to emphasize its condemnation of general warrants, the Fourth Amendment requires the government to obtain a warrant from a judge before invading the persons, houses, papers or effects of anyone and lays down the preconditions for the issuance of such warrants? What if those preconditions are individualized suspicion and articulated evidence of crime — called probable cause — about the specific person whose privacy the government seeks to invade?

    What if these principles of constitutional fidelity, privacy and probable cause and the unlawfulness of general warrants have been regarded universally and publicly as quintessentially American values, values that set this nation apart from all others?
    [ ... ]"
    http://www.washingtontimes.com/news/...e-w-bush-obam/
    I am responsible for my writing, not your understanding of it.

  2. #2
    Regular Member 1245A Defender's Avatar
    Join Date
    Jul 2009
    Location
    north mason county, Washington, USA
    Posts
    4,381

    Well,,,

    Thank you, Nightmare for posting this!
    I've always respected and enjoyed the judges view points,
    he is liberty centric and clearly on OUR side!

    not many comments to the article so far, but here is one..



    • Doug Huffman • 2 hours agoFine column Judge. TWT should splash it like a headline, like the headline announcing the President's resignation. MOLON LABE applies to much more than arms.






    • [COLOR=rgba(0, 39, 59, 0.498039)][/COLOR]
    • •
    • Reply
    • •
    • Share ›











    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    “If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.”

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

  3. #3
    Regular Member
    Join Date
    Feb 2013
    Location
    Thru Death's Door in Wisconsin
    Posts
    13,147
    LOL Thank you. Look at that user name! He must think highly of himself. Bwahaha!
    Last edited by Nightmare; 02-26-2015 at 07:12 AM.
    I am responsible for my writing, not your understanding of it.

  4. #4
    Regular Member sudden valley gunner's Avatar
    Join Date
    Dec 2008
    Location
    Whatcom County
    Posts
    17,338
    Wait a second, you mean it isn't up to the cops to decide what is unreasonable?
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

  5. #5
    Regular Member OC for ME's Avatar
    Join Date
    Jan 2010
    Location
    White Oak Plantation
    Posts
    12,269
    The judge missed the mark. If the courts did not grant exceptions/exemptions to the safeguards in the Constitution then we would not be having these types of discussions...Terry v. OH. Far more injurious than the Patriot Act...which is pure evil, by the way.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

  6. #6
    Founder's Club Member
    Join Date
    Nov 2006
    Location
    Fairfax Co., VA
    Posts
    18,766
    A few years ago I read what I thought was a penetrating analysis about the Fourth Amendment (4A) and privacy.

    The author held that privacy is a sort of red-herring, a misdirection, invented by SCOTUS.

    The 4A doesn't mention privacy. It says "The right of the people to be secure..." Yet, the courts have made privacy into a standard. I cannot recall security against unreasonable searches and seizures being mentioned in a court case.

    Don't get me wrong. I'm not knocking the judge--he has argument to make, an audience to persuade. If that audience thinks the issue is privacy, or responds to that, who can fault him?

    --------------------------

    Separately, it occurred to me that the privacy construct allows the courts to destroy the 4A almost at will.

    One of the angles on privacy--one of the measuring sticks the courts use--is whether "society" would be willing to recognize a person's privacy interest in something.

    Greater minds than I have pointed out that the courts engage in soothsaying when they pretend to know what "society" would hold as legitimate for someone to want to keep private.

    The angle that occurred to me is that the "society" standard destroys one of the main points of rights.

    Think for a moment, or rather recall. Rights are rights because they take certain policy options off the table. Recall also the philosophic statement that in a democratic republic, rights exist to protect the minority--the rights of the majority need no protection.

    By hitching privacy to what society is willing to recognize, the courts have literally said a large aspect of your 4A rights are now subject to whatever the majority validates. A chunk of your 4A protections are literally now on-the-table as a policy option, subject to the whims of "society". Nevermind that a court cannot possibly determine whether millions of individuals would hold valid a defendant's wish for privacy on a given subject in a certain set of circumstances, nevermind that there is just no possible way a court could accurately determine that. Even if a court could, doing so instantly subjects this aspect of this right to democracy, popular will, majority opinion, etc. Gone, forgotten, swept away are the lessons learned, and the price paid in blood, smoke, and treasure across 725 years of history. Rationality and historical experience are veiled; shifting, manipulable public opinion becomes the standard. With, of course, the courts as the high priest interpreters of a public opinion they cannot possibly ascertain.

    And, yet, privacy is not even mentioned in the 4A. Security is.
    Last edited by Citizen; 02-26-2015 at 11:15 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  7. #7
    Moderator / Administrator Grapeshot's Avatar
    Join Date
    May 2006
    Location
    North Chesterfield, Va.
    Posts
    34,602
    Quote Originally Posted by Citizen View Post
    A few years ago I read what I thought was a penetrating analysis about the Fourth Amendment (4A) and privacy.

    The author held that privacy is a sort of red-herring, a misdirection, invented by SCOTUS.

    The 4A doesn't mention privacy. It says "The right of the people to be secure..." Yet, the courts have made privacy into a standard. I cannot recall security against unreasonable searches and seizures being mentioned in a court case.

    Don't get me wrong. I'm not knocking the judge--he has argument to make, an audience to persuade. If that audience thinks the issue is privacy, or responds to that, who can fault him?

    --------------------------

    Separately, it occurred to me that the privacy construct allows the courts to destroy the 4A almost at will.

    One of the angles on privacy--one of the measuring sticks the courts use--is whether "society" would be willing to recognize a person's privacy interest in something.

    Greater minds than I have pointed out that the courts engage in soothsaying when they pretend to know what "society" would hold as legitimate for someone to want to keep private.

    The angle that occurred to me is that the "society" standard destroys one of the main points of rights.

    Think for a moment, or rather recall. Rights are rights because they take certain policy options off the table. Recall also the philosophic statement that in a democratic republic, rights exist to protect the minority--the rights of the majority need no protection.

    By hitching privacy to what society is willing to recognize, the courts have literally said a large aspect of your 4A rights are now subject to whatever the majority validates. A chunk of your 4A protections are literally now on-the-table as a policy option, subject to the whims of "society". Nevermind that a court cannot possibly determine whether millions of individuals would hold valid a defendant's wish for privacy on a given subject in a certain set of circumstances, nevermind that there is just no possible way a court could accurately determine that. Even if a court could, doing so instantly subjects this aspect of this right to democracy, popular will, majority opinion, etc. Gone, forgotten, swept away are the lessons learned, and the price paid in blood, smoke, and treasure across 725 years of history. Rationality and historical experience are veiled; shifting, manipulable public opinion becomes the standard. With, of course, the courts as the high priest interpreters of a public opinion they cannot possibly ascertain.

    And, yet, privacy is not even mentioned in the 4A. Security is.
    That is the precept of a living breathing Constitution - a school of thought not much to my liking.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

  8. #8
    Regular Member
    Join Date
    Mar 2013
    Location
    nj
    Posts
    3,277
    There is no "right to privacy" in the constitution.

    However consider this dissent by Justice Brandeis in Olmstead v U.S. (1928).

    " The makers of our constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope and include the right to life and an inviolate personality-- THE RIGHT TO BE LEFT ALONE-- the most comprehensive of the rights and the right most valued by civilized men. The principle underlying the fourth and fifth amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings and his intellect"

    In my opinion folks surrender their privacy when they are requested to have a social security number or any type of licensing that requires a social security number to obtain a license...

    You also surrender your privacy when you attach a license plate to your automobile. In this scenario the state's interest in fee's and identifying folks out weights our personal privacy however no one ever challenges this requirement by the state...

    Our privacy when out the window with the advent of technology.

    My .02
    " I detest hypocrites and their Hypocrisy" I support Liberty for each, for all, and forever".
    Ask yourself, Do you own Yourself?

  9. #9
    Founder's Club Member
    Join Date
    Nov 2006
    Location
    Fairfax Co., VA
    Posts
    18,766
    Quote Originally Posted by countryclubjoe View Post
    However consider this dissent by Justice Brandeis in Olmstead v U.S. (1928).

    " The makers of our constitution understood the need to secure conditions favorable to the pursuit of happiness, and the protections guaranteed by this are much broader in scope and include the right to life and an inviolate personality-- THE RIGHT TO BE LEFT ALONE-- the most comprehensive of the rights and the right most valued by civilized men. The principle underlying the fourth and fifth amendments is protection against invasions of the sanctities of a man's home and privacies of life. This is a recognition of the significance of man's spiritual nature, his feelings and his intellect"
    The part I bold-faced aligns perfectly with a quote I very much like from the Supreme Court of the United States (SCOTUS) in Union Pacific Rail Co. vs Botsford.

    No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.


    It was quoted by a later SCOTUS, in Terry v Ohio, (turn on sarcasm here) a few paragraphs before SCOTUS said was OK for detective McFadden to seize Mr. Terry and search him when the law was not clear and unquestionable on that point. (Otherwise, why did the case make it to SCOTUS to get sorted out? And, why did the dissent say the court was granting to police more power to search and seize than magistrates?)
    Last edited by Citizen; 02-27-2015 at 09:29 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  10. #10
    Regular Member
    Join Date
    Aug 2014
    Location
    Colorado
    Posts
    29

    The 4th Amendment is Essentially Dead

    Judge Napolitano need only look to the metal detectors screening the public who enter his courtroom for an example of a warrantless search that is not based on any reasonable suspicion. The Judge should not cast stones in a glass house.

    This case is worth reading:

    http://openjurist.org/387/f3d/1303/bourgeois-v-peters-l

    It is Bourgeois v Peters, 387 F.3d 1303 (2004). It held that the government may not subject the public to warrantless searches in the form of metal detector screening as a condition to their exercise of their 1st Amendment right to petition government. It is a federal court of appeals decision. So, how can courts screen the public when the enter a public building to seek redress or to participate in the judicial process?

    Answer: 'cause I (the judge) say so and it's OK and reasonable to search the (dangerous) public who come into a courtroom without any warrant.

    Essentially, the 4th Amendment is dead as we (the public) routinely trade the illusion of security and allow searches of all kinds (think TSA, government buildings, NSA monitoring to keep us safe from terrorists, background checks for firearms ownership, etc, etc) for our Constitutional rights.

  11. #11
    Founder's Club Member
    Join Date
    Nov 2006
    Location
    Fairfax Co., VA
    Posts
    18,766
    Quote Originally Posted by countryclubjoe View Post
    SNIP Our privacy when out the window with the advent of technology.
    Ain't that the truth.

    Personally, I think it went out the window long before that.

    Four and a half millennia of history proves one thing or nothing at all: government will always violate the rules. Government will always do what it wants whenever it thinks it can get away with it. Every time.

    In years gone by, freedom-minded commentators pointed out that tax-victims pay for the swords with which government threatens them. Today, we pay for the zillion-dollar data storage mega-center built by the No Such Agency in the desert of Nevada or Utah. And, all the snooping equipment.

    Based on my reading, I have formulated Citizen's Rule of Government Misconduct Regarding Technology: Government will always, every time, abuse every single technological advance. If a technological advance occurs, government will misuse it. For example, once somebody figured out how to attach alligator clips to the telephone lines on a telephone pole, warrantless wire-taps were guaranteed. For example, once the technology of splitting the light beam of a fiber-optic cable was understood, it was guaranteed government would split the beam and record the split side of the signal--thus every electronic communication arriving in this country by trans-oceanic fiber-optic cable is spied upon. Once somebody invented infra-red imaging, it was guaranteed some cops would point it at all homes to conduct warrantless searches for indoor marijuana cultivation in a very few homes.

    A few years ago, a well-known commentator (Judge Napolitano? Lew Rockwell? Dr. Thomas Woods?--I can't recall) made a penetrating point that applies even more broadly than just technological advances. Paraphrase: The reason government ignores rights and violates rights so much is because rights are not necessary to what government wants to do. Rights are a barrier, an inhibition to government. Never are rights necessary to government's actual aims, goals, purposes. Rights just get in their way. Of course! government will do what it can to circumvent rights, reduce rights, eliminate rights.
    Last edited by Citizen; 02-27-2015 at 10:14 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  12. #12
    Founder's Club Member
    Join Date
    Nov 2006
    Location
    Fairfax Co., VA
    Posts
    18,766
    Quote Originally Posted by MarkS View Post
    SNIP The Judge should not cast stones in a glass house.
    Umm. Andrew Napolitano quit the bench years ago. He explains why in one of his books. As part of the explanation, he relates the time he knew conclusively that a cop was lying while testifying in front of him.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •