Absolute or strict liability is not applicable to someone taking your car. You may have been negligent in allowing someone to so take your car, but strict liability doesn’t apply. Absolute liability does not apply, either, to an animal. If the owner knows the animal has a propensity to attack, then he would be negligent in allowing the beast to so attack. There is no absolute liability there. Absolute liability usually comes into play when one makes an inherently dangerous product and lets the product into the commerce stream. Then he may be absolutely liable for any damage ensuing therefrom. There is another basis for holding common carriers (such as public transportation) liable, which is neither ordinary negligence or absolute liability, but “a high degree of care.” There is also the “attractive nuisance” theory, in which an owner has a swimming pool (the usual example) and a child gets into it and drowns. Merely by owning or managing the “attractive nuisance,” liability may ensue.
Why is it that every time law comes up with an easy, nonviolent, manpower saving, virtually incontestable way to stop criminal activities, instantly a large amount of people rise up, complaining bitterly that it is unconstitutional, that the government is “stomping all over the Constitution” and bringing up issues such as invasion of privacy? On what grounds do you expect privacy when being out in the open public?
Then, two minutes later they are complaining about how the government and law enforcement is not doing enough to handle crime!
The same thing happened when radar arrived in the police departments. Not one peep came out when some genius created radar detectors to install in cars to thwart the police. About as fast as nonviolent technology arrives in the hands of police, our constitution allows private citizens to create and sell technology designed to combat that belonging to the law.
*Police technology … Public response.
Police radio ------------ portable police frequency scanners.
Police guns -------------- assault weapons.
Bullet proof vest --------- sale of armor piercing bullets
Faster cars ---- supercharged street legal cars.
Brighter, baton flashlights ---- nightvision devices
radar --------- radar detectors
Variable beam radar ----- two signal radar detectors
laser speed guns ------- laser detectors
Taser ------------ Taser
Stungun --------- stungun
Safe tire puncturing device ------ puncture proof tires
Higher powered ammo ------------ bullet proof vests.
Every time the cops come up with a way to help stop criminal activities, the constitution allows the creation and sale of devices designed to thwart them. Later, States can make them illegal, but for every State which does so, another does not and provides them for sale. Like, radar detectors. When they became illegal in some States, other States sold ones designed to be hidden in the grill!
And criminals get the technology and use it so while one group of folks complain about violations of the constitution, another group complains about insufficient law protection. So a solution is to provide more officers on the beats, but then folks resist the taxes needed to increase police budgets. Even if the budget is increased and more police hired, then a large portion of the people protected by the new officers start complaining of a “police state” and waving the Constitution about.
There is no pleasing everyone.
Um, Sailor; you made the assertion, and you just repeated it. It is incumbent on you to prove that assertion.
Let’s see a link to the law you just said exists.
Sua Sponte: Much as I hate to disagree with you on matters of Constitutional Law, I think that you comment that the 14th Amendment makes the entirety of the Constitution, and especially the Bill of Right, applicable to the States and their political subdivisions is mistaken. It is my understanding that only those provisions of the Federal Constitution that are essential to “the due process of law” are incorporated in the Great Amendment. For instance, the 7th Amendment guarantee of a jury trial in civil cases is not imposed on the States as not being essential to due process. For the most part however, the Bill of Rights provisions dealing with criminal procedure have been incorporated as fundamental rights.
In case anybody actually cares, the ad I saw for photo radar-proof license plate covers was in Road & Track (April 2001, p. 143).
They call it “The Eliminator.” :rolleyes: It supposedly “turns your plate translucent at known camera angles.” That word - translucent - I do not think it means what they think it means (presumably the cover becomes translucent, rather than the plate itself).
The ad gives a website (http://www.redlineauto.com), on which they proudly claim that The Eliminator is currently implemented in a list of states including New York. This is really interesting since, as SirRay points out, license plate covers of any kind are illegal there. The same section of the code quoted on that page also says that the plate must be kept “clean and in a condition so as to be easily readable,” so I guess mud as a permanent solution is out, too.
I just love the spasm of uninformed, uneducated responses to constitutional law questions like the one in the OP. Jeez, folks, if you don’t know from your own study of the issue, look it up, it ain’t that hard.
What a mishmash of mis-understanding of the law. A prima facie case isn’t the issue here, as I noted in my last post. Ohio, for instance (Ohio Revised Statutes, Section 4521.03 (F)), establishes joint liability between owner and operator in a parking ticket situation, and allows the owner to recover from the operator any fine payed on the operator’s behalf upon proof the owner was not the operator. So the owner can’t avoid liability by overcoming a presumption of operation; the owner is liable despite not operating the vehicle. This avoids the difficulty of the municipality having to prove who operated the vehicle in the face of an owner who gets up on the stand and says he didn’t park incorrectly, his stupid brother did.
And the burden of proof effectively shifts in criminal cases once the state makes a case sufficient to convict; it’s just that the burden on the defense is relatively small: establish reasonable doubt.
Finally, a couple of posters have taken us to task for complaining about efficient administration of the law. Quite apart from the fact that the protections in the Constitution’s first 8 amendments are all ABOUT hindering “efficient” administration of the law (certainly true of amendments 4 - 8), the point to the discussion is not “photo radar is evil and should be driven out” but instead “is use of photos which don’t identify drivers, only owners a constitutionally permissible way of preventing speeding/red-light running?” Once you establish that the wrong person can likely be charged with and convicted of the criminal offense of speeding/red-light running, the hairs on the back of your neck should start to rise; we have a whole criminal system devoted to making sure this doesn’t happen.
Well, neither position is right. The 14th Amendment covers due process of the law, but it is not limited to procedural due process, and covers substantive due process. I think that the only one of the Bill of Rights that has not been incorporated into the 14th Am. by USSCT decisions is the 2d amendment regarding the right to bear arms, since that is not one of the fundamental rights alluded to in the 9th amendment.
Monty, you asked me for my reason for insulting the Fed. I assume you mean
I still think this is no reason to insult me (2x) so let me explain:
My response to the OP was yes it is unconstitutional but that has not prevented the gov’t from doing some of these things in the past so why is this any different?
I go on to some examples which I believe the Gov’t has made up rules (laws) that they say are in the Constitution but clearly are not. Yes they are close but not nearly as encompassing as the original amendment. and also list some examples of rights of the people given to them in the Bill of Rights that the Gov’t has taken away.
I see glaring differences in the 1st 2 amendments:
A1 specifically states congress shall make no law - but mentions nothing of state or local gov’ts.
It has been pointed out that the law still applies to state and local gov’t because the US Constitution supercedes the state.
They we role around to A2. For some reason the Gov’t has found it is ok for states to restrict firearms. This amendment doesn’t even state congress shall make no law just the “right of the people… shall not be infringed”. This seems more encompassing then the above amendment that limits the restriction to Congress.
Now if the above doesn’t prove that the Fed is using the Constitution as TP then nothing will. Also I just got back from a 4 day hike along the Appalachian Trail in Shenandoah National Park. I noticed a sign stating firearms prohibited - this is a National Park - is no one infringing on my right to keep and bear arms? I am not talking about gun ownership, just my right to bear arms.
Another example of the use of the Constitution as TP. The right to abortion is basically the right to ‘privacy’ which we all know doesn’t exactly exist in the Constitution. So it is basically saying that the Gov’t has no right to know you are killing you baby or fetus (chose whatever term you want here). That right is extended to the States so they can’t find out either. But doctors in NYS are required by law to report gunshot wounds to the state. Why is a non-lethal gunshot wound exempt from the Constitution while what is ‘arguably the taking of a human life’ (AlGore’s words) protected by this so called right?
Well there are more glaring examples (at least to me) that can be brought up but most importantly this is how I feel and I’m sure I’m not alone in this feeling.
K2Dave, I already pointed out that the 14th Amendment incorporates the 1st Amendment through USSCT interpretation. It is the “due process” clause in the 14th Amendment. This is not the procedural due process contained in the 5th Amendment.
The 14th Am. states in part: reside. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The “deprive any person of life, liberty, or property, without due process” is substantive due process. The USSCT has incorporated all of the Bill of Rights (1st 8 amendments) into this 14th, except the 2d, because the right to bear arms is not one of the fundamental rights alluded to in the 9th.
I agree with you, however, that you should not have been insulted. You are not a lawyer and could not have been expected to know these nuances.
From my primitive understanding of the 9th amendment - I can see nothing where it says that this only applies to A1 and A3-A8. I read it as one of the rights given to the people can’t be used to take away another.
The 14th prevents states from taking away rights given to US citizens.
Maybe you read it differently, maybe you have a more complete copy of the Constitution. I understand that the power to interpret the Constitution is given by the Constitution to the SC and really they can do whatever they please and we are without recourse (except for the 2nd but then again that’s pretty much squashed).
Do you really read A9 to say A2 not included? or do you just understand that this is the findings of the SC and we must accept it?
I don’t know about other countries, but my understanding of Canadian law is that the owner of the car in this situation would not be liable civilly, provided he/she can prove that someone else was driving the car without permission.
For example, here’s what the Ontario Highway Traffic Act says:
With respect to one of sailor’s other posts, yes, in Canada, we use “vicarious liability” to mean that A is liable for the acts of B. It’s not very common, but is used in civil matters as set out in s. 192 above - the owner of the car may be civilly liable to a third party who is injured by the car.
We use “strict liability” in some penal offences, notably regulatory in nature, where the Crown must prove the facts, then the onus shifts to the accused to show due diligence as a defence.
Whew, finally found it buried in my notes. About the incorporation of rights through the Due Process clause: according to my Criminal Procedure professor, two rights of criminal defendants have not (yet) been held to apply to the states. Those are: the right to a grand jury indictment, and the prohibition on excessive bail. Note that this is only referring to the rights of criminal defendants, so the first three Amendments don’t apply. So, the entire Bill of Rights hasn’t made it through the Due Process gates yet.
Anyway, carry on.
[QUOTE]
*Originally posted by k2dave *
**From my primitive understanding of the 9th amendment - I can see nothing where it says that this only applies to A1 and A3-A8. I read it as one of the rights given to the people can’t be used to take away another.
[/QUOTE}
I only referred to the 9th Am since it refers to the fundamental rights of the People, those rights which the 1st 8 intended to state. The 9th states that if we missed one or some, it was inadvertent and the People still have them.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This doesn’t say what you said it does. it merely states that the listing of the rights should not be construed to deny any not included.
The 14th prevents states from taking away rights given to US citizens.
Maybe you read it differently, maybe you have a more complete copy of the Constitution. I understand that the power to interpret the Constitution is given by the Constitution to the SC and really they can do whatever they please and we are without recourse (except for the 2nd but then again that’s pretty much squashed).
Do you really read A9 to say A2 not included? or do you just understand that this is the findings of the SC and we must accept it?
**[/QUOTE]
A9 does not exclude A2. It is merely my interpretation that A2 is not such a fundamental right. Incidentally, the USSCT, in the only decision it has rendered on A2, stated that A2 does not confer such a right on persons, but only for the State to maintain a militia. I don’t have the cite handy, but I can look it up at Lexis-Nexis if you insist and I get the time.
Not needed (thanks for offering), but I would like your insight as to the ‘Constitutional’ right to privacy given to abortions but not given to gunshot wounds.
In Roe v. Wade the court held that abortion was within the scope of the concept of personal liberty guaranteed to plaintiff by the U.S. Const. amend. XIV, but recognized that the state had a compelling interest in both the safety of the mother and the welfare of the fetus. The court held that abortion was a fundamental right, guaranteed not by the U.S. Const. amend. IX, but by the due process clause of amend. XIV. This right was not absolute, however, and it was subject to regulation by narrowly drawn legislation aimed at vindicating legitimate, compelling state interests. Drawing on the social, medical, and legal history of abortion, the court found two compelling state interests which supported regulation: protection of the health of the mother and the potentiality of human life. The court held that the former became compelling, and was thus ground for regulation, after the first trimester of pregnancy, beyond which the state could regulate the abortion procedure to preserve and protect maternal health. The court held that the latter became compelling at viability, after which a state could proscribe abortion except to preserve the life or health of the mother.
So where does the right or privacy come into play? The USSCT did not use that right to decide any abortion cases.
If you mean an emergency operation in the event of a gunshot wound, that is proper without consent due to the compelling state interest of protecting lives. Perhaps a doctor can answer that more completely. I understand that consent is attempted to be got from a close relative first.
OK friends, let’s walk through this slowly before this thread goes completely to hell in a hand basket. This started out as an inquiry about the fairness of issuing traffic citations based only on an automated camera photo of a car violating some traffic rule, like running a red light or speeding. Early on I had tried to suggest that there is no constitutional principal involved in the initial issuance of the traffic ticket and that the problem arose when the accused demanded a trial of the complaint. I thought, and still think, that the introduction in evidence of the photo at the trial of the case along with testimony of someone with knowledge of the operation of the automated system explaining how it works, ought to be sufficient to make out the bare minimum case necessary to convict if the defendant did not offer contradicting evidence. For this purpose, there well might be a local statute, ordinance or rule of evidence that creates a rebuttable presumption that the owner of a car is the driver. My input was that simple.
Since then we have gotten into discussions about the nature and effect of the 14th Amendment to the Constitution of the US, the difference between vicarious liability and strict liability, and the right to privacy in the setting of the right to have an abortion without restriction by the Federal, State or local government. These question do not have much to do with the question we started out with and to some extent confuse principles that apply in criminal cases and principles that apply in civil cases.
In most states we are dealing with two distinct kinds of lawsuits, criminal and civil. As a broad general proposition criminal cases are those in which the government is the complainant on a claim that there has been some act done that is specifically prohibited by a statute passed by the State legislature or some local government body. The object of the lawsuit is to punish the wrong doer so as to dissuade him or others from doing that again. Some would argue that the object is increasingly to get even with the wrong doer. McViegh was prosecuted for murder in a criminal case in which the US government was the prtitioner. If you are issued a traffic citation, that is a complaint in a criminal case in which the State, county or town government is the plaintif. There are special rules in criminal cases that do not apply in civil cases, for instance, while you generally have a right to be represented by a lawyer in both criminal and civil cases, in criminal cases the defendant can compel the government to provide the defendant with a lawyer. Generally that does not happen in civil cases.
In civil cases, again as a broad general proposition, the complaint is generally of a private wrong made by a private person in which the government is only remotely concerned. The object is to force the wrong doer to compensate the complainant for the complainant’s loss. A single act can violate a criminal statute and constitute a civil wrong. In the case of McVeigh, the people injured in the explosion and the survivors of the people killed, and the owners of property damaged all have a civil claim against McVeigh, or now against his estate, assuming he has one. Most civil cases are pretty prosaic, auto accident injuries, argument about the performance of agreements, unpaid debts, real estate boundaries, divorces and the like.
In civil cases, but not in any criminal cases that I can think of right now, there are situations in which a defendant can be required to compensate an injured person even though the defendant did not personally do anything wrong. For instance, in my State, there is a statute that says that when you let someone else drive your car, you are responsible for any damage caused by the driver of the car, even if you were not present. The only defenses are that the driver did not have your permission to drive or that the driver did not do something wrong that caused the injury. This is vicarious liability; you are responsible for the wrongs of another.
Strict liability deals with situations that are deemed to be so dangerous that you are held responsible for injury caused by the activity no matter how careful you might have been. Classily strict liability applied to setting off explosives, keeping ferocious animals (lions and tigers and bears, oh my) and impounding waters. In my State the legislature has declared, and the courts have upheld, that there is strict liability for pollution rivers and streams with animal manure. If you dump hog manure in a stream, you are going to pay big dollars for the fish killed even though you did every thing possible to prevent the fish kill and the immediate cause of the fish kill was a circumstance you could not have foreseen or prevented.
It is my recollection that the idea of a right to privacy outside the search and seizure and trespass setting first came up in the Connecticut condom cases in which States had made in a criminal act to sell, advertise or give out information about birth control devices. The US Sup. Ct. held that sort of State action to violate an implied right to privacy contained in the equal protection and due process clause of the 14th Amend. While a fair number of Constitutional scholars have thought that the Court’s reasoning and conclusions were, to use a term of art, somewhat goofy, the basic concept was that in the area of sex, and birth control there some things in which the government has no legitimate concern. When the abortion cases came up the Court chose to hang its hat on the right to privacy hook created by the condom cases, but only up to a point. The abortion cases have allowed some government restrictions on the so-called right to abortion on demand, and have restricted the so-called right to the earlier part of a pregnancy. The US Supremes were by no means as expansive in the abortion cases as in the condom cases. Of course, all this has very little to do with traffic tickets.
The second sentence is completely false. There has been more than one ruling on the 2nd amendment, but there was only one in the 20th century, to which you were presumably referring and which you (conveniently?) lacked a cite for. Here is a cite: UNITED STATES v. MILLER, 307 U.S. 174 (1939). A relevant quote:
So militia as defined by the constitution and the SC is not a branch of the state government but all physically capable males. The point of the ruling was that the defense had not shown that the particular weapon in question was suitable for use in a militia:
Note that they do not say that this particular weapon is unsuitable to the militia, they merely rebuke the defense for failing to provide any evidence and remand it to a lower court.
Sorry for going off the topic, but I didn’t want to let that… inaccurate statement… stand.
It was the 3d sentence, not the first,that you object to, and I don’t think it was false. The Court held that the weapon in question could not be a weapon of a militia and so was not constitutionally protected.
Um, if y’all are gonna debate constitutional law, y’all might want to have ready at least a reference book for the subject. It would help avoid pitfalls.
- As to Miller, the Supreme Court did NOT hold that the weapon in question could not be used as a militia weapon. The court held that there was an absence of evidence showing that it could be so used. This included evidence adduced at trial or any evidence from which judicial notice of that concept could be inferred. Thereafter followed a string of references to show that judicial notice of the idea of using a “double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length” as a militia weapon could not be taken.
It is questionable whether or not Miller is “good law”. It is instructive to note that the accused defendants never filed any briefs or made any appearances in the appellate process, having been released when the trial court decided the National Firearms Act violated the Second Amendment. It can be pretty easy to win cases against opponents who don’t show! There remains much debate as to whether the Second Amendment is a “personal” right (i.e., a right each person has without respect to his/her relationship with an authorized militia) or a “derivative” right (i.e., a right only existing to the extent necessary to provide for a “well-regulated militia”). Miller’s bland assumption of the latter is hardly of much value, though a few lower courts still give it deference (see, e.g., Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943)).
- Due Process and the Fourteenth Amendment - Let’s get this straight. There are three specific guarantees embodied in the first ten amendments which have expressly been denied selective incorporation into the general due process concepts of the Fourteenth Amendment: 1) The Second Amendment right to bear and keep arms (U. S. v. Cruikshank, 92 U.S. 542, 553 (1876)), 2) The Fifth Amendment clause guaranteeing criminal prosecution only on a grand jury indictment (Hurtado v. California, 110 U.S. 516 (1884)), and 3) The Seventh Amendment guarantee of a jury trial in civil cases where the amount in controversy exceeds $20 (Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916)). In addition, the Third Amendment’s prohibition against quartering soldiers in private homes has not been addressed (it appears inapplicable to the states), nor has the Eighth Amendment provision proscribing imposition of excessive fines been directly addressed (it is likely part and parcel of the rest of the amendment, which has been incorporated).
As for the confusion between procedural and substantive due process, I don’t notice that barbitu8 has added much clarity (indeed some of the statements made by barbitu8 are flat wrong). Not that we’d expect him/her to “know these nuances” :rolleyes:
“Procedural” due process is guaranteed by the same clauses that guarantee “substantive” due process. But while “procedural” due process addresses only the procedure by which life, liberty or property are deprived, “substantive” due process addresses the underlying fairness of the state law or action by which the person can be deprived of life, liberty or property. Thus, as noted in the example I loved best found in the book Constitutional Law, 2d ed. by Nowak, Rotunda and Young, a person sentenced to death for double parking a car after a jury trial and appropriate appellate process would not have been denied “procedural” due process, no matter how unfair the law might be that provides for such a penalty. Having had a fair trial, before a jury of his peers, with the ability to appeal, the process used would have been that due him. But it is doubtful the law by which he was prosecuted would pass “substantive” due process muster. The court would review the substance of the law to see if it comported with the Constitution (i.e., does it deprive the individual of life, liberty or property in a way incompatible with the basic concepts of democratic government as limited by inherent individual liberties).
Now, obviously the adoption of the Bill of Rights makes reasonably clear the limitations on the federal government when it comes to infringing individual liberties (I said “reasonably”). But the limitations on state governments embodied by the federal Constitution were almost non-existent (see Article I, Section 10). Many state governments adopted significant limitations in their state constitutions, but, as an example, it was perfectly allright for states to establish state religions. During the ante-bellum era, there was a growing number of people who argued that there should be inherent limitations placed on states as part of the federal system. This concept ended up embodied as the Fourteenth Amendment.
As initially interpreted, however, the Supreme Court held that the meaning of the guarantee of due process in the Fourteenth Amendment only meant a guarantee of procudural due process in the making of the law (Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 80 (1873)). But, by 1897, the Court had decided that “liberty” meant not only physical freedom, but also the freedom to use ones physical faculties in a useful way. In deciding (Allgeyer v. Louisiana, 165 U.S. 578 (1897)) that the Court could review laws which infringed on such “liberty” to see if they were reasonably related to a legitimate end, the Court got into the business of reviewing the substance of legislation, second-guessing it to see if it had a valid end. The use of this type of review reached its hight in Lochner v. New York, 198 U.S. 45 (1905), where the Court held that New York could not limit the working hours of bakers to 60 hours per week or 10 hours per day because such a law infringed on the “liberty” of the baker to contract employment with an employer involving longer hours.
The continued use of this type of review by the Court led eventually to the threat by FDR to revamp the membership of the Court through legislation. Not too amazingly, the Court managed an epiphany in the mid-1930’s and tossed out the concept of broad substantive review of legislative acts. Instead, over the last 60 years, the Court substituted the idea that, in the main, the Court would not review a determination of a state legislature to address some issue within the pervue of state government in a specific way. Only where the state infringes upon a fundamental individual right will the Court begin a more active review.
HERE is where selective incorporation comes into play. The Court has determined on a case by case basis starting with Gitlow v. New York, 268 U.S. 652 (1925) (Freedom of Speech), whether or not the various rights embodied in the first eight amendments are so fundamental to the concept of liberty that the prohibition on depriving an individual of liberty without due process requires they be adhered to by the states. Additional rights found to be so fundamental as to require stricter scrutiny by the Court include the right to travel, to vote, to associate freely, the right to a fair criminal proceding, as well as the right to fairly adjudicated claims against the government, and the right to privacy (including some freedom of choice in matters of marriage, sexual relations and child bearing, see, e.g., Griswold v. Connecticut, 381 U. S. 479 (1965), Roe v. Wade, 410 U.S. 113 (1973)).
- Right to Privacy and the Ninth Amendment - While it is true that the Ninth Amendment hasn’t been specifically found to support a right of privacy, this is because the issue got sidestepped by being addressed first as a state action issue (as opposed to action by the federal government). You will note that four of the justices in the Griswold case regarding contraceptive use appeared to feel that the Ninth Amendment established that the Court could find individual rights worth protecting from state action even if they weren’t expressly mentioned; since the case involved state legislation it involved the Fourteenth Amendment’s due process clause and the Court didn’t have to hold that the Ninth Amendment was directly implicated. Later cases addressing the concept of a “right of privacy” even with regard to the federal government have continued to apply it as a part of the basic concept of due process. In many ways, of course, reference to any right as being contained in the Ninth Amendment is improper; the amendment only precludes application of the maxim that that which is not included in a listing is intended to be left out. The right to freely associate has a similar derivation.
Perhaps this will help y’all discuss this complicated issue.