Excuse me you're going to do what to my car?(4th Amendment rant)

The BBQ Pit
21

Sua, I hope you will take what I am going to say in the positive spirit I mean it. I used to find your posts to be much betetr quality months ago and lately I get the impression you do quick drivebys where you shoot from the hip. I have noticed that in your posts in other threads lately.

In this particular case, the fact is that searches in order to be allowed to enter an airport or a government building are clearly legal. Bricker takes the time to write a well explained answer. Incubus makes a quick remark which cannot be interpreted as a general remark but as a particular remark regarding the case at hand. While his post does not add much, it clearly jibes with the real world. Your reply to that remark sound like you are contradicting it, whereas we all know you can be searched. So, in the narrow sense that the remark was intended if you cantradict it, then you are wrong. If your post is intended as a more general statement, then it is not a response to that post as I read it and interpret it. The SCOTUS, as Bricker explains, sides with Incubus on this narrow issue. As I say, I used to find your posts much better thought out in the past and I hope you will consider this as constructive criticism.

22

sailor:

Not to speak for SuaSponte, but I’m not sure you interpreted his words fairly.

It’s true that the courts permit the sort of search under discussion. But the reasoning is as important as the outcome, because the reasoning allows us to apply the same analysis to future situations and arrive at a consistent result.

Sua’s comment was, at least as I read it, a refutation of the argument offered by Incubus. He points out that the sine qua non of searches is not merely, “Will lives be saved or lost?” by offering a host of examples in which policies do potentially lead to lives being lost. So we cannot judge evry situation by merely asking, “Could this conceivably lead to loss of life?” Instead, we ask, “Does this action offend the guarantees offered by the Constitution?”

  • Rick
23

I’ll start by saying that Incubus’ post certainly wasn’t helpful in any way as it leaves so much out. if you interpret it in the wide sense, then yes, it is incorrect as Sua points out. But if you interpret it in the narrow context of this discussion, then it can be interpreted to be correct and I always prefer to interpret things in the way most favorable to the poster, maybe becuse I get tired of people nitpicking my own posts.

Sua’s post can be interpreted to be correct if taken by itself, as it is just a vague expression of ideas, just like incubus’ post. But if you take it as a rsponse to incubus’ post then you have to take it in that light. IMHO your post clarifies much more and is much more precise while Sua’s post falls in the category of incubus’s post: not very helpful in discussing the legality of the matter. Since we know Sua_Sponte is a lawyer and since I have seen good analytical posts by him in the past, that is the reason for my post. Again, I am not only referring only and singly to this post or this thread but just that I have noticed a decline in the quality of his posts from well done legal analysis to shooting from the hip generalities. The only reason I mentioned this is because I know he is capable of doing better. Note that incubus’ post which origiunated Sua’s response is just as unhelpful but I have not followed incubus’s trajectory nor do I know he is a lawyer. And, again, it’s just MHO.

24

sailor, - incubus was not addressing the legality of the search (in any event, Bricker had addressed the legal issue with his usualy thoroughness).

incubus was addressing another issue, which I consider to be more important; the issue of freedoms versus safety. My response was addressed to that issue.

And I consider my response to be a very important one. For a long time in this country, but particularly after 9/11, there has been a “free lunch” attitude with regard to civil liberties: people want civil liberties, want them limited/taken away at the first inkling that those civil liberties can cause harm.

And my response was intended to point out that civil liberties have always caused harm. Our society pays a price for the Bill of Rights, and that price is often death. I believe that that price is well worth paying, and that is the point I was trying to make.

You may take what I wrote as a “vague expression of ideas:” I do not. I consider it a very valuable bit of knowledge, and I think the issue is fundamental, though too often ignored - are we willing to lose our freedoms chasing after an illusory sense of safety?

You say that the quality of my posts has dropped since months ago. Ironically, I have posted that very one (with varying language, of course) several times on these Boards, including several months ago.

But let’s get to the nub of your comment. Yes, I am a lawyer. No, not all my posts, even posts in issues of Constitutional law and the like, have to be a legal analysis. Sure, I can, and where no one else has already done so, I will usually do a legal analysis for the benefit of those who wish to read it.

But, and this is the important point: I don’t always agree with the proper legal analysis. I am fully aware of the rationale provided for allowing the type of searches addressed in this thread, and I think it is wrong. It is expediency, not principle, that allows judges to write that “you don’t have to go to the airport” to justify searches there, or “you don’t have to be on the road” to justify DUI roadblocks.

I do not think that my status as an attorney requires me to defend a legal determination with which I do not agree. It (and honesty) compels me to make sure that I do not improperly present my personal opinion as the status of the law, and I did not do so here (and don’t do so in other threads).

IOW, there are two issues presented by the OP. The first is, “are the searches legal?” They are, and Bricker had already addressed that. The second is, “are the searches right?” I do not believe that they are, and that was the point I was trying to make.

I appreciate the criticism if I am not expressing myself coherently or persuasively. I do not appreciate the criticism is you are saying that, in threads addressing an issue of law, my only proper role is to be Attorney Man.

Sua

25

Could we have the Attorney League, maybe, with cool costumes?

One reason I so seldom depart from the role of Attorney Man is that the ground becomes much less firm when we depart from settled law, or new issues to be settled under well-established methods of analyses. I’m perfectly comfortable discussing what IS; it’s more difficult discussing what SHOULD BE with the same sort of authority.

It was not always thus. Many a college night was spent in deep discussion, often fueled by beer, about how things should be. But I gradually came to believe that these sorts of discussions were largely futile, because they come down to what amount to gratuitous assertions.

“I think public safety is more important than keeping the trunk of your car off-limits to searches.”

“Well, I don’t.”

Where do you go from there? Without an authority to point to, you cannot do more than stubbornly cling to your side, as you opponent clings to his. These are not questions that can be answered by citation to study, or to ruling. They evade every effort to pin them down to provable hypotheses. They waft in the wind, borne up only by the relative skill of each rhetor supporting them.

In short, these sorts of “right or wrong” questions seldom satisfy me as discussion or debate material, because I know how the debate will end.

And now, if you don’t mind, I’m going to climb back into my cool costume with the red ‘A’ on the front, and cruise the skies looking for motions in limine in need of a savior. :slight_smile:

  • Rick
26

They got to you, man. They’ve beaten the spark out of you. :smiley:

I agree that all the “big issue” debates have to rely upon are words. But hell, man, that’s our entire profession. Our reliance on citations to authority and case law simply means we are relying on the words of somebody else who are a ridiculous black polyester robe over their suit. And ultimately, they are also relying on the words of others, be it the Bible, Cicero, or the like.

My defense for my handwaving is that laws and constituional amendments can change, and my fear is that laws in the area of civil liberties are more likely to change for the worse instead of for the better.
So I keep arguing. In this case, I try to point out to those that say, “we are in a different position now. If we strictly adhere to civil liberties, people will die,” that people have always died because of civil liberties, right from the get go, and they have to come up with a different argument, because things aren’t really different.

I don’t expect to win, but it’s a brick wall I just want to keep banging at.

Sua

Dedicated to Truth, Justice and Billable Hours for all mankind, eh? :stuck_out_tongue:

Sua

27

Sua, I don’t want to make any bif deal out of this. Anyone who has read any of my posts knows full well that I have been very vocal in my opposition to any restrictions on civil liberties and to allowing the State any more power than it has, which IMHO is more than enough to do its job. We agree on that and we agree that freedom carries a price. I have said it in many threads so we are in total agreement on the substance of your post.

I guess it is just that when there is an ongoing discussion on whether you are obligated to submit to a search when you enter an airport, I was hoping to get some narrower discussion of the issue at hand, but, obviously, you are entitled to avoid that and talk in more general terms. The problem is that the post which was only supposed to refer to what incubus said, may be interpreted to refer to the matter being discussed in the thread.which you ignored completely. In other words, if your post dealt with the OP first and then dealt with incubus, we would all understand but since you only mention incubus and he supports a position, it would seem that by contradicting him you are agreeing with the OP in that the search is illegal.

I agree that you have no obligation to do any legal analysis nor to agree with what the laws, in fact, are.

28

Fair enough, sailor. I guess that the fact that people here know that I am a lawyer does impose some obligation on me to explicitly distinguish between when I am making legal analysis and when I’m opining on what I think the law should be.

Criticism noted and accepted.

Sua

29

>> “I think public safety is more important than keeping the trunk of your car off-limits to searches.”
>> “Well, I don’t.”
>> Where do you go from there?

Well, yes, in many cases they are value judgments which are just a reflection of that person’s values. But you can point out undesirable consequences of the other person’s values or desirable consequences of your own. You can also point out whose values are more in tune with those of the society we live in, etc. While you both do this the beer continues to flow and soon you are discussing the breasts of the woman seated at the end of the bar. Soon civil rights are forgotten _