nachtnebel

I can't agree that the principles and intent of the Constitution, and their expression, are so time bound they aren't comprehensible or valid for our times.

The "press" was analogously fluid as the internet is now--it wasn't a domain controlled by a few outlets, but something than anyone could set up, and did set up, at a moments notice anywhere, anytime. And the scurrilous nature of what got printed was every bit as bad or worse than what's on the internet. Cf. the editor who was jailed under the Sedition Act for expressing the wish that the next 21-gun salute for President Adams would be pointed at his *ss. The medium used or speed are irrelevant to the essential thing occurring in the free dissemination of opinion.

It is also noteworthy that the term "Arms" was used in the 2nd Amendment, not "firearms". The intent being that ownership of commonly used arms, be they swords, knives, rifles, or ray guns, are a fundamental right of citizens. The restriction imposed by the machine gun act in 1934 was upheld partly based on the rationale that riflemen in a military squad did not have machine guns, therefore such devices were not arms commonly used. The same rationale applied to AOW (all other weapons) such as artillery, etc.

Finally, wrt 4th Amendment searches and TSA invasive searches for no cause, I'm even less sure about what has changed since the writing of the Constitution. Crotches, female breasts, buttocks seem to be the same, the expectation and desire to be secure from unwanted touch and viewing of those areas certainly are pretty much the same. So is the hand and eye of the government agent accessing those private areas. This is a profound break with both the explicit words of the 4th Amendment and the expectations of the people.

If things have changed to the point of requiring changes to the Constitution, it should be amended. If there is political support for the changes, they will be made. If there is not political support, the changes should not be made in the first place. This process has been supplanted by a government by force where three people, Obama, Napolitano, and Pistole can decree strip searches for the American people, and the groping of their private parts.

RichardKenner

You missed the entire point of what I wrote. I didn't say they weren't "valid" for our time, just that many have no literal meaning in our time, so they have to be interpreted. And when you're in the of business interpreting them, there's room for people to disagree on the interpretation. You're basically trying to ask "if this technology existed at the time it was written, what would the folks who wrote it have decided?". There's no way to definitively answer that question. Would the "right to bear arms" have included automatic weapons? Maybe yes, but maybe no: there's just no way to know.

I'll give another example. As was discussed in another thread, when the Bill of Rights was written, the word "warrant" was well-understood. Unfortunately, it referred to a legal instrument that's different from the modern usage of "warrant" and which isn't issued anymore. So if you must interpret the 4th Amendment literally, it's only giving conditions under which the government can issue a document that it no longer issues. In other words, that part of the 4th Amendment has no literal meaning. Indeed we can give it a meaning by interpreting the word "warrant" there to be the modern "search warrant" because it isn't that different, but that's an interpretation, not taking it literally. Perhaps (and most likely) the people who wrote it would have intended it to also apply to the modern meaning of the term, but perhaps not. We can't know for sure.

MavSeven

I find the "it's different today than it was back then" reasoning to be nothing more than a bogus trick.

If the Constitution needs to be updated to "keep up with the times", it provides established procedures for doing just that. Nowhere does it say that it can be ignored by the courts simply because "things are different today".

Unfortunately, for a while, the courts (especially the Supreme Court) were such a champion for people's rights, that people have forgotten that they do not have the legal power to plainly go against the Constitution, and instead assume that they are allowed to rewrite it.

RichardKenner

Of course! Nor am I proposing that it being "ignored". I was arguing that it's not a document that can be taken literally because the kinds of things (the Internet, automatic weapons, etc) we try to apply it to didn't exist back then. So we have to apply a process where we ask what the words that are there would mean in a context that didn't exist when they were written. That means they can't be taken literally, but instead have to be interpreted.

InkUnderNails

I agree. However, the proper process for doing that is by amendment in modern language and terminology. No interpretation necessary.

Let's try one. IANAL, so my effort will be crude, but here goes.

Now, just get the necessary majorities to pass it, and I will quit my complaining.

nachtnebel

What you seem to be saying is that the history (original intent) of the Constitutional text in question has to be brought out in order to properly understand it and apply it. I could live with that, provided that any such "interpretation" in our own times does not result in any substantial diminution of the right/liberty as experienced and claimed by the original signers. That is, subsequent federal courts including SCOTUS do not have any authority to lessen the rights and freedoms agreed to by the states in forming the federal union.

I'm not sure what you're talking about here. It is beyond dispute that one of the primary concerns of the framers was to do away with general warrants (you know, the "writ of assistance" thing attempted by the British). They wanted particularized warrants etc, etc. Some historians claim that because officers at this time could only arrest with warrants, the framers thought this a sufficient protection against illegal searches and seizures. As police powers expanded as the 1800's rolled on, so did further SCOTUS rulings in this area to limit police activity in an attempt to preserve the original liberty and guarantees expressed in the 4th Amendment.


It is impossible to make the case that the original framers would have been content with wholesale strip searches of the people, and complete body searches including intimate areas for NO cause at airports. We need not wring our hands because the framers did not have airports or naked scanners, or double digit IQ TSA clerks goosing former heads of state.

If anything, the abhorrence of such governmental intrusions was precisely why the revolutionary war was fought in the first place. And yes, I think we can indeed know that. You cannot do something so highly illegal and offensive to persons no matter how convenient it might be. Such a trespass cannot be recovered from.

RichardKenner

But that's the problem. Let's say that laws were passed that forbid citizens from owning automatic weapons, from posting comments critical of the government on government web sites, and requiring citizens who choose to fly to submit to strip searches and lets say the courts upheld each of those. None of those would have resulted in the diminution of the rights/libertuies of the original signers because they couldn't do those things in any case. So we have to go back and ask "well, what if they could? Would they consider those restrictions to be diminutions of their rights to do those things?".

Boggie Dog

Seems you are saying that we should be asking how does what we are doing today comport to the Constitution but I think the question should be how does the Constitution comport to what we are doing today.

The language in the Constitution is pretty straight forward. It has been the courts that have twisted the documents meaning. Example, a 4th amendment carve out for administrative searches. There is not one word in the 4th that supports that concept.

nachtnebel

IMO, you are making this more difficult than it needs to be. By your reasoning, once automated presses came into being, none of the old conceptions of freedom of the press would apply because the technology is different. The Constitution was written broadly enough for such advances in technology. There is a right to bear "Arms" not a right to bear "flintlock smoothbore rifles and pistols". That definition of course could extend to both machine guns and nuclear warheads which are both arms, but which due to the undesirability of folks having those, needed some other rationale, as expressed in US v Miller, as arms in the 2nd amendment sense being what someone would reasonably have if incorporated into a militia. The fact that the modern rifle uses a center fired primer rather than a flintlock, is rifled rather than smoothbore, and capable of multiple fires between reloads is completely irrelevant.

Air travel is simply travel. It is the means by which modern people travel. It is a required means of travel in most cases. The fact that the vehicle used does not require horses, is not restricted to moving on land, and carries more people than a wagon is completely irrelevant.

The essence of the activity in traveling is the same now as it was for the framers. The essence of traveling on public routes, on for-hire carriers, or by private means remains the same now as it was for the framers. The mechanism by which travel is effected is the only change, and it is an irrelevant one. So, yes indeed, we can know what the framers would have felt about being strip searched and sexually groped, both they and their families, before embarking on a journey.

InkUnderNails

Legalities aside, all one really needs to do to determine if the founders would have been OK with the TSA is to imagine a situation where if they could hire a carriage to go from Washington to Richmond, they had to stop at the Virginia border to have their carriage and all of their belongings searched as well as get a pat down.

I am sure they would have been fine with that.

jtodd

^

gojirasan

Interesting discussion. Although it has drifted quite a bit. As far as the TSA sexually assaulting rape victims it is clearly wrong. As in unethical and immoral for an individual or a society to commit such an assault. But why submit to such treatment? I've never been sexually assaulted, but I wouldn't even consider allowing a TSO to have any form of sexual activity with me in order to fly. It's so not worth it. I will never understand why anyone is willing to allow themselves to be assaulted and humiliated like that. What could possibly be so important to justify it? A job? Not for me. A job that requires me to be sexually molested on a regular basis is not a job that I want. A holiday? Hah! We should start a campaign of "just say no" to airport molestation. Maybe if you or someone you love is going to actually die if you don't get on the plane that day. Other than that. Just. Say. No. And walk away. Full stop.

As far as the constitutional interpretation arguments, I do think in some cases technological developments can require new interpretations. The case of whether the "right to bear arms" includes the right to privately own nuclear weapons is one example. I would probably vote for allowing it with a "shall issue" nuclear arms permit, but the public good argument is quite persuasive in this regard.

I am strongly against license plate readers on every block. Or tracking device implants with automated readers on every block. 1984 was not an instruction manual. However these are perhaps areas where technological arguments can be made.

In order to have any chance of an accurate "interpretation" of an 18th century document a detailed knowledge of American history is required. If you want to understand the intent behind someone's writing understanding their beliefs and assumptions would seem to be a necessary first step. You are basically trying to guess what someone from the 18th century would have thought about some form of modern technology. I doubt most judges or even supreme court justices have the necessary historical knowledge to make such interpretations. Which is why you get utterly ridiculous "interpretations" that bear not even the slightest resemblance to something that any of the founders would have believed. A centuries long game of telephone is being played where interpretations of previous interpretations of previous interpretations are being used to justify the sort of tyranny that would have utterly horrified any of the founders.

In terms of travel, arguing that the founders would have thought differently about any form of it is a pretty pathetic argument to make. Horse-drawn carriages killed people regularly. Getting trampled by a team of horses and a large, heavy set of wooden wagon wheels is nearly as lethal as getting hit by an ICE powered horseless carriage. Yet there was no requirement for a license plate or drivers license. It was one of many examples of tradeoffs between ease of law enforcement, safety, and freedom. For many 18th century Americans freedom trumped nearly all other concerns. The same is most definitely not the case for the majority of 21st century Americans.

Of course, as with nuclear weapons, as means of transportation become more and more potentially dangerous interpretations become more difficult. Which is why it is important to understand the often Libertarian views of the various founders who actually wrote a particular part of the constitution. If a person has a previous history of operating a machine dangerously and injuring people a strong 'public good' argument can be made for limiting their freedom to promote the safety of others. Assuming that everyone is potentially dangerous until the state determines otherwise is a much more difficult argument to make and one that the Founders would almost certainly have not agreed with, regardless of the technology in question.

nachtnebel

The "original intent" idea has some usefulness in restraining the federal judiciary from completely doing what it wants without regard to the original compact between the states. Yet the idea of precedence also has value in freeing us from having to always re-answer old questions, and can provide avenues for future answers, even at the risk of having destructive lines of development, such as the case of the administrative search doctrine that has so clearly buggered us today wrt TSA gropings. Precedence is the filter through which lawyers understand the Constitution.

Yet, Richard Kenner and others who argue against a literal reading of the Constitution by the great unwashed, are really objecting to a popular analogue of applying these same filters of precedence and development of understanding of the Constitution over time. When a modern person reads the "literal words" of the 4th Amendment, he does so automatically applying similar filters impacting his understandings of the words, filters very loosely corresponding to legal development and current expectations derived from that development. But in a way that allows him to reject certain proposed lines of development as being foreign to justice as he experiences it, or as fundamentally violating his expectations as a person living under the provisions of Constitutional law.

The federal judiciary has to take all this under consideration as well. If well- intentioned citizens strongly and consistently object to certain lines of activity performed by government actors, if there is popular objection and rejection of those, the interpretations of the judiciary will indeed reflect that. Just as the outcry over unlimited police searches and seizures resulted in belated judicial rulings limiting those (US v Weeks, and Mapp v Ohio). Unfortunately, this is a following, not a leading type of activity, which means the battle over the TSA's sex organ gropings without cause are likely to be fought before the courts make any substantial move.

mybodyismyown

I agree with this plan of action 100%. This is my M.O. - if a screener threatens to touch me, I no longer want to fly. I want a police officer and I want to leave. I will find some other way to get where I'm going, because my safety and well-being are worth more than whatever timeline my trip requires. I do not engage in sexual activity with strangers, ever, no matter what quid pro quo of getting on an airplane these people try to manipulate me with.

I can report success in the one time I've actually activated this plan. I was very clear about my history of being sexually assaulted by the TSA and told them I would never tolerate it again, that I would not consent to be touched by them, and that I wanted to leave the airport. After much hue and cry, and about an hour of delay while various suits came to the checkpoint to talk to me while I was in hysterics, I was allowed to leave. I recommend that others follow this plan and prioritize their safety above that day's travel plans. Can you imagine the publicity if women were turned away from their flights day after day in airport after airport because they stood up to this nonsense?

Wally Bird

Citation ?

By way of counterpoint (my emphasis):

Edwards v. People of State of California, 314 US (1941)
A citizen's right to interstate travel has long been recognized as a fundamental right, grounded upon the Privileges and Immunities Clause of Article IV, Section 2, of the United States Constitution.

Kent v. Dulles 357 US (1958)
The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.

Aphtheker v. Sec. Of State 378 US (1964)
Freedom of travel is a constitutional liberty closely related to the rights of free speech and association The constitutional right to travel has been firmly established and repeatedly recognized. Freedom to travel throughout the United States has long been recognized as a basic right under the constitution.

US v. Guest 383 US (1966)
The constitutional right to travel from one State to another, and necessarily use the highways or other instruments of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. Freedom to travel throughout
the United States has long been recognized as a basic right under the Constitution.

Shapiro v. Thompson 394 US (1969)
This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules or regulations which unreasonably burden or retrict this movement. It is a right broadly assertable against private interference as well as governmental action. It is a virtually unconditional personal right, guaranteed by the Constitution to us all.

Griffin v. Breckenridge 403 US (1971)
Our cases have firmly established that the right of interstate travel is
constitutionally protected, does not necessarily rest on the Fourteenth
Amendment, and is assertable against private as well as governmental
interference.

Dunn v. Blumstein 405 US (1972)
Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution. (Affirming Guest, above)

US v. Davis 482 F.2D (1973)
It is firmly established that freedom to travel at home and abroad without unreasonable governmental restriction is a fundamental constitutional right of every citizen.

Memorial Hospital v. Maricopa County 415 US (1974)
The right of interstate travel has repeatedly been recognized as a basic
constitutional freedom.

Califano v. Torres 435 US (1978)
The constitutional right of interstate travel is virtually unqualified.