4 ms·

I understand your point in the first paragraph, now. There is legal, and there is moral. The SC is the final, ultimate arbiter of _legality_, not morality. Th

by javert 14y ago

I understand your point in the first paragraph, now. There is legal, and there is moral. The SC is the final, ultimate arbiter of _legality_, not morality. This isn't a conflict with the Constitution, it's just a "meta-Constitutional" issue. You act like this is a bizarre notion, but it's actually the common-sense one. First, nobody holds the Constitution as a moral document, only as a legal one. Second, the founding fathers clearly articulated (and demonstrated) that when a government becomes tyrannical, it can and should be overthrown. Now, putting all that aside, there is a separate issue, which is that the government doesn't follow the 4th amendment. Thus, it is acting both illegally _and_ immorally. Though I see that you would probably say it's legal if the SC rules it OK. I guess it would be "legal" to enslave people, if the SC ruled it to be OK under the constitution? I mean, can the SC just make _anything_ legal by "interpreting" the constitution _however_ it wants to? (Rhetorical question, not asking for a response.) > your moral opinions are wholly subjective. No, they're objective, but I don't expect that to sound reasonable to a non-philosopher (or even most philosophers). > I think you know perfectly well what I meant in the first place. I resent the implication that I'm just arguing for the sake of argument, which simply isn't the case. > I have nothing further to say on this topic I respect your wish to close the conversation, and I feel the same way.

tptacek 14y ago
I think you pulled "the government doesn't follow the 4th Amendment" out of the air. The First Amendment is written in remarkably clear language. "Congress shall make no law". Every court that has confronted the First Amendment has pointed out that there's very little wiggle room in it. And yet there is room to maneuver in the First Amendment. You can't yell "fire" in a crowded movie theater; you can't stand outside a small-town prison and encourage a mob to lynch one of its inmates. This goes beyond "speech plus action"; there are messages that are unprotected by the First Amendment.† Now look again at the Fourth Amendment. What does the word "unreasonable" mean? Do you think the Framers just slipped up and wrote one of the most important amendments in the Bill of Rights sloppily? Or do you, like every Supreme Court since the ratification of the Constitution, think that the Fourth Amendment is designed to balance the needs of the state against those of the people, and that's why they put a wildcard like "reasonable" in the text? TSA searches are lawful under the "Administrative Search" doctrine. Searches can be allowed as "administrative" when they are (a) not targeted to specific classes of people, (b) avoidable --- as in, nobody is coming to your house or stopping your car on the road to search you, and (c) balanced against a legitimate need of the state (in this case, the safety of commercial airliners). I think the TSA is patently ridiculous and they piss me off just as much as they piss you off. But they are not unconstitutional. The Constitution allows plenty of room for Congress to make dumb decisions, and this was one of them. † Libel, fighting words, incitement among them.
- javert 14y ago
  What constitutes "unreasonable"? IANAL, but presumably, it would be doing something without having a good reason to do it, which is what's happening here. (Looking back, this looks sarcastic, but I didn't mean that sarcastically.) Under your way of looking about it, that whole amendment is completely worthless, because "reasonable" is anything. > balance the needs of the state against those of the people There is no such thing as a "need of the state" that is opposed to "needs of the people." They're one in the same. I'm not claiming this is obvious, but I'm claiming that it's true. (BTW, there are no "needs of the people" apart from "needs of specific, individual people.") Tangentially, your example of "avoidable" administrative searches actually is self-defeating. Air travel and road travel are completely analogous in every relevant way. So, the laws of the country are inconsistent. Specifically, if commercial air travel is avoidable ("Hey, just drive from North Carolina to California,") then so is car travel ("Hey, just walk to work every day"). I mean, hell, why don't we just "avoid" going out of the house each morning? The lawyers SHOULD go, "Hey, we can't stop cars on the roads without a reasonable cause, so we can't stop all air passengers, either." Of course, instead they'll just go, "Hey, now we can use the TSA to screen cars, too!" Talk about the erosion of rights.
  - tptacek 14y ago
    The entire definition of "unreasonable" can be distilled to balancing, for any given circumstance, the privacy interests of the searched against the state's interests. Similarly, it's not productive to litigate whether the state properly has interests. This one, based on a couple hundred years jurisprudence, does: the state's interests include law enforcement, national security, and the safety of its citizens. You could then easily come up with a scenario in which a roadside search was lawful. For instance, SCOTUS has found some roadside sobriety checkpoints to be lawful (I am perhaps even angrier about sobriety checkpoints than I am about the TSA!) These aren't controversial points and they aren't points I made up. I feel like I have to keep saying this in every comment: there are more ways for laws to be wrong than "unconstitutional". I think the TSA is a farce and that it's offensive to core American values. But it's a farce that Congress was within its rights to create.

by javert 14y ago

tptacek 14y ago

I think you pulled "the government doesn't follow the 4th Amendment" out of the air. The First Amendment is written in remarkably clear language. "Congress shall make no law". Every court that has confronted the First Amendment has pointed out that there's very little wiggle room in it. And yet there is room to maneuver in the First Amendment. You can't yell "fire" in a crowded movie theater; you can't stand outside a small-town prison and encourage a mob to lynch one of its inmates. This goes beyond "speech plus action"; there are messages that are unprotected by the First Amendment.† Now look again at the Fourth Amendment. What does the word "unreasonable" mean? Do you think the Framers just slipped up and wrote one of the most important amendments in the Bill of Rights sloppily? Or do you, like every Supreme Court since the ratification of the Constitution, think that the Fourth Amendment is designed to balance the needs of the state against those of the people, and that's why they put a wildcard like "reasonable" in the text? TSA searches are lawful under the "Administrative Search" doctrine. Searches can be allowed as "administrative" when they are (a) not targeted to specific classes of people, (b) avoidable --- as in, nobody is coming to your house or stopping your car on the road to search you, and (c) balanced against a legitimate need of the state (in this case, the safety of commercial airliners). I think the TSA is patently ridiculous and they piss me off just as much as they piss you off. But they are not unconstitutional. The Constitution allows plenty of room for Congress to make dumb decisions, and this was one of them. † Libel, fighting words, incitement among them.

javert 14y ago
What constitutes "unreasonable"? IANAL, but presumably, it would be doing something without having a good reason to do it, which is what's happening here. (Looking back, this looks sarcastic, but I didn't mean that sarcastically.) Under your way of looking about it, that whole amendment is completely worthless, because "reasonable" is anything. > balance the needs of the state against those of the people There is no such thing as a "need of the state" that is opposed to "needs of the people." They're one in the same. I'm not claiming this is obvious, but I'm claiming that it's true. (BTW, there are no "needs of the people" apart from "needs of specific, individual people.") Tangentially, your example of "avoidable" administrative searches actually is self-defeating. Air travel and road travel are completely analogous in every relevant way. So, the laws of the country are inconsistent. Specifically, if commercial air travel is avoidable ("Hey, just drive from North Carolina to California,") then so is car travel ("Hey, just walk to work every day"). I mean, hell, why don't we just "avoid" going out of the house each morning? The lawyers SHOULD go, "Hey, we can't stop cars on the roads without a reasonable cause, so we can't stop all air passengers, either." Of course, instead they'll just go, "Hey, now we can use the TSA to screen cars, too!" Talk about the erosion of rights.
- tptacek 14y ago
  The entire definition of "unreasonable" can be distilled to balancing, for any given circumstance, the privacy interests of the searched against the state's interests. Similarly, it's not productive to litigate whether the state properly has interests. This one, based on a couple hundred years jurisprudence, does: the state's interests include law enforcement, national security, and the safety of its citizens. You could then easily come up with a scenario in which a roadside search was lawful. For instance, SCOTUS has found some roadside sobriety checkpoints to be lawful (I am perhaps even angrier about sobriety checkpoints than I am about the TSA!) These aren't controversial points and they aren't points I made up. I feel like I have to keep saying this in every comment: there are more ways for laws to be wrong than "unconstitutional". I think the TSA is a farce and that it's offensive to core American values. But it's a farce that Congress was within its rights to create.