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This is a victory -- if you can call a victory taking something back to where it was all along. Along those lines, I noted this in the article: In a footnote
by DanielBMarkham 15y ago
This is a victory -- if you can call a victory taking something back to where it was all along.
Along those lines, I noted this in the article:
In a footnote, Scalia added that, “Whatever new methods of investigation may be devised, our tsk, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”
If that broader interpretation would hold, that would be awesome news. But by putting it in a footnote, as I understand it, it's more of a dream than anything else. Great philosophy, though. Here's hoping it plays out that way.
The problem -- and the reason it won't, probably -- is that this kind of interpretation needs to be put into a constitutional amendment. If you rely on judicial interpretation, between the legislature and the courts, they'll make a muddled mess out of it.
- ajkessler 15y agoSome of our most important caselaw is contained in footnotes.
- deleted 15y ago[deleted]
- iandanforth 15y agoIf you could supply a few examples I would love to learn!
- ajkessler 15y agoOne of the most famous is US v. Carolene (http://en.wikipedia.org/wiki/United_States_v._Carolene_Products_Co. http://en.wikipedia.org/wiki/United_States_v._Carolene_Produ...), but there are hundreds, maybe thousands of examples. Even when they don't contain actual law, footnotes often give insights into why a court decided an issue or interpreted a fact the way it did. These little hints can be invaluable in distinguishing later cases, or giving a later court a foothold to create some new law.
- IgorPartola 15y agoMinor correction: courts do not create laws. They merely interpret them, setting a precedent.
- cwp 15y agoSetting a precedent is, in fact, the creation of new law. This is the basis of the Common Law system that the United States and other former English colonies use. See, for example, http://en.wikipedia.org/wiki/Common_law http://en.wikipedia.org/wiki/Common_law
- IgorPartola 15y ago:). Thanks for the link, it was very educational. However, it actually doesn't seem to apply in this case: "United States federal courts only act as interpreters of statutes and the constitution by elaborating and precisely defining the broad language (connotation 1(b) above), but, unlike state courts, do not act as an independent source of common law (connotation 1(a) above)." [1] http://en.wikipedia.org/wiki/Common_law#United_States_federal_system_.281789_and_1938.29 http://en.wikipedia.org/wiki/Common_law#United_States_federa...
- ajkessler 15y agoIn theory, you're right: courts don't make laws. In practice, courts make law every day. This is intuitively obvious (e.g. If law says you can't do A or C but says nothing about B, and the court says "B is really just like A and C, so B is also prohibited under the law", the court has just made law)[edit: perhaps not so obvious if you don't practice law, but courts do this every day], but also goes deeper: The very idea of judicial review itself was invented by the courts (see http://en.wikipedia.org/wiki/Marbury_v._Madison http://en.wikipedia.org/wiki/Marbury_v._Madison).
- IgorPartola 15y agoNeat. I wonder what our society would have looked like today if Marshall lost that one (had a bad day, spilled his coffee).
- dalke 15y agoWhile not a footnote, the headnote of Santa Clara County v. Southern Pacific Railroad "indicated that corporations enjoyed the same rights under the Fourteenth Amendment, adopted in 1868, as did natural persons" and has been very influential.
- dbarlett 15y agoThe actual holding in Taylor v. Taintor (http://en.wikipedia.org/wiki/Taylor_v._Taintor http://en.wikipedia.org/wiki/Taylor_v._Taintor) is not nearly as famous as the paragraph in the majority opinion that gives legal standing to bounty hunters: "Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose"
- kbutler 15y agoIt seems that footnotes would often be "dicta" - judicial comments not directly relating to the case at issue, and therefore not form binding precedent. May be influential, but not binding. http://en.wikipedia.org/wiki/Obiter_dictum http://en.wikipedia.org/wiki/Obiter_dictum
- dedward 15y agoa 9-0 vote by the supreme on this matter is a huge thing.... much more than simply a majority vote. it sends a loud and clear message about their stance on the matter. judges and prosecutors will take this, and all the details into consideration moving forward..... i would imagine the judiciary does not like to pass judgement that will beoverturned by thesupreme court as a matter of professional pride in many cases, and prosecutors dontmlike taking on losingcases. take the win for what its worth, it is huge. ( i had to double check i wasnt linking to the onion when i woke up and saw theheadline.... good job neighbours ! beproud that your supreme mcourt just did what it is supposed to do, andthey did it loud and clear.
- iamdave 15y agoa 9-0 vote by the supreme on this matter is a huge thing.... much more than simply a majority vote. it sends a loud and clear message about their stance on the matter. Tell that to lower/circuit courts who have an annoying habit of giving SCOTUS rulings a big fat middle finger.
- CurtHagenlocher 15y agoThat's a pretty broad statement. Got any examples?
- iamdave 15y agoA couple can be found here: http://www.askgallonlaw.com/labor/2010/03/lower-court-overrules-supreme-court/ http://www.askgallonlaw.com/labor/2010/03/lower-court-overru...
- andrewpi 15y agoI can think of one recent example: District of Columbia v. Heller & McDonald v. Chicago. Lower courts have been generally unwilling to embrace 2nd amendment rights in light of those two decisions.
- dedward 15y ago
- mey 15y agoThe supreme court can only rule on issues brought before it, rather then make broad corrections to law. One of the reasons the ACLU case against the Fed over wiretapping was rejected early. (Who are the people being hurt by it, is one of the requirements) http://www.aclu.org/national-security/federal-appeals-court-allows-aclu-challenge-warrantless-wiretapping-law-proceed http://www.aclu.org/national-security/federal-appeals-court-... It's one of the checks placed on their authority.
- apg 15y agoA statement like that which is not part of the official decision are referred to as "dictum". Lower courts review higher court rulings, including dicta, and over time dicta has a way of becoming law. Scalia is a kind of a Fourth Amendment hardliner when it comes to _the home_, so I'm actually surprised at this result. Fourth Amendment rights in so far as automobiles go have been eroding for years. Note that the concurring opinion wanted to reframe the issue such that there _was_ a reasonable expectation of privacy when it comes to automobiles (which would be a more expansive reading of Fourth Amendment rights).
- bambax 15y agoIt's a victory, yes, but probably not huge. The majority opinion, written by Scalia, takes the narrowest of views: that placing a GPS device is a "search", and as such, subject to the limitations set out by the 4th Amendment. In a (concurring) opinion, Justice Sotomayor agrees with that narrow view, but she asks what will happen when the Government doesn't need to place an actual physical device in one's car in order to record where it's going? And indeed we're probably already there, so this decision is in fact more about the past than about the future.
- kip_ 15y agoSuch as accessing the phone carrier's records on where a cell phone has been via its internal GPS?
- delinka 15y agoOr perhaps following the car with a drone.
- ConstantineXVI 15y agoUntil we have drones smart enough to focus on a specific car (vs. a mostly identical model right next to it), the drones will still require human operators, which makes the process not far removed from an old-fashioned tail (similar to the mentioned beeper case).
- nekojima 15y agoTargets can be laser painted/marked by a drone or more usually a secondary source and followed by a drone on the specific signature. This is currently actively being done in several combat theatres. It is highly likely to be already happening in the US, particularly along the borders and in federal investigations.
- eli 15y agoYou're over thinking it. Red light cameras can already read the license plate of every car that goes through an intersection. The roving fleet of meter maids in DC drive cars that read the plates of every car they pass.
- cema 15y agoif you can call a victory taking something back to where it was all along Yes, I would say you can. Democracy requires constant vigilance by the public (in contrast with the despotism where only the despots and their political machinery need to be vigilant).