Not at all.
Words have meaning. If “public purpose” is held to mean whatever a state legislature wants it to mean, then the only thing eviscerated is the limit on takings.
Well, even if we discount the 14th Amendment incorporation of the Bill of Rights and the cases that sprang from that, there is this from the Connecticut Constitution:
And there is a reasonable debate about whether government may take property from one private landholder and give it to another private landholder (which was the case in Kelo and call it a public use.
And since when is the US Supreme Court the arbiter of what is consistent with a state constitution?
I don’t know, it’s pretty tough to place Boerne and Smith on a left-right scale I think. In practice, Smith was a blow to religions other than Christianity and Judaism (i.e. those with practices that might actually need protection from the majority). Did conservatives care about RFRA? I suspect they would have happily traded it for Boerne’s limits on Congressional power under Section 5, which has been used pretty uniformly for liberal causes.
So, since you radiate you internet and cell phone outside the home, you have no expectation of privacy?. So if the beams radiate out, the government, and perhaps anyone else with the ability to obtain it, has a right to it?
The government does not have the right to peek inside your home. In the future I am sure they will be able to get chemical signatures of everything in your home, should it be open to surveilance ? Do we have no rights of privacy anymore.
An important point that a lot of people miss. The Kelo decision was based on principles that are usually espoused by conservatives. The majority decision was that judges should not be deciding what a legitimate public use was. Those decisions would be better made by the involved communities and the courts should avoid second-guessing local opinions. There was nothing in the Kelo decision that called for redevelopment. All the court did was declare “hands off” on the issue.
That’s how I’d have decided it, but the Supreme Court sees it differently.
So, Bricker, are you saying that anything that can be detected, even if only with very specialized and very sensitive devices (infrared, ultra-soft noises, heat detection, etc.), is fair game for the police to gather, in your opinion?
My argument would be that the standard is a reasonable expectation of privacy - just because the technology exists to monitor a person’s activities in a certain set of circumstances doesn’t mean the average person would think his activities are likely to be observable. If you allow high-tech devices like infrared scanners to be considered reasonable, then you’re basically saying that the only types of invasion of privacy which are unreasonable are those that are physically impossible or which have been explicitly ruled unreasonable by earlier precedents. Any new surveillance device is allowable by the fact that it exists. (I should note I’m basing this on the posts in this thread - I haven’t read the Kyllo decision.)
As a side note, candidates are applying for a job. I’ve learned, from harsh experience, when you apply for a job, and are being interviewed, you don’t rely on what you’ve “heard about”, you do research.
Yes, as long as it’s radiated into the public sphere, I would have decided that it’s public.
But again, I don’t say the contrary view is wrong; I just would have done it differently.
No, I have always thought the physical trespass standard that existed pre-Katz had a place in the analysis. So any heretofore unknown method of surveillance would be forbidden if it was accomplished by physical trespass of some kind.
AGAIN, though, I’d point out that I don’t assail the actual Kyllo decision as any sort of abuse of discretion… I just would have decided differently.
Bricker,
So just to understand. You would say that phone calls made on either a cell phone or a cordless phone have no expectation of privacy?
Then you obviously are also of the mind that there is NO right to privacy, correct?
Because the truth is, Bricker, everything you do and say behind the walls of your home could be detected with sophisticated enough equipment.
Or do you think that the walls of your home do not transmit sound? Do you think the vents on your house don’t radiate heat? Do you think the whole structure doesn’t bleed heat and sound that could be detected and recorded with the right gear?
Interesting view. Smithwas very unpopular (I’ve heard talks it cost Scalia any shot at the Chief slot), and RFRA was a cause celebre for a while. Now, I agree with you about what happened in practice - but you are looking at it (a) with hindsight, and (b) as an intelligent lawyer. Conservatives were up in arms about them at the time. RFRA was Congress trying to limit the Court, and Boerne was a huge slap down on Congress. SCOTUS was really clear about defending its right to define what rights are protected udner the constitution.
Correct. A friend of mine had a scanner that he discovered could pick up cordless phone conversations from his neighbors. This was news in 1988; today it’s old hat. No one should believe anything said on a cordless phone offers any privacy.
Cell phones that use digitally encrypted signals are another issue, since it’s not just a matter of capturing the radio waves but decrypting the signal. Old analog cell phones: same deal as cordless phones.
So just how are you deviating from Scalia’s analysis that based it on the availability of technology to see the infrared emissions?
Correct. Apart from the specific guarantees in the Fourth Amendment, I would not find any generalized “right to privacy” in the Constitution.
I think that’s an unfair statement. Just as the CSI shows’ ability to take a blurry video and refine it into an image sharp enough to discern a newspaper headline is Hollywood foolishness, so too is the idea that with sensitive enough equipment, anything inside a building can be disclosed. Distortion of light or sound adds static to the data picture; static that cannot be eliminated no matter how good your process is.
So sure: my whole house bleeds heat and sound. But if I’m having a conversation in an interior room, there is no technology that can be used outside of the home to hear it.
Scalia: “We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’ constitutes a search–at least where (as here) the technology in question is not in general public use.”
Bricker: “I think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area,’ is fine, because intrusion into a physical area makes a much better bright-line rule.”
I don’t see why it makes a difference if the cell phone is encrypted then…
And what difference do you draw between a cell phone call and a land line call? If the cops want to tap my land line, they need a warrant unless I am misremembering, and that is needed even if they don’t have to come into my home to place the tap.