4 ms·

Although, by virtue of its basis in English common law, laws in the US (including the constitution), are not subject to textual interpretation by laypersons, bu

Although, by virtue of its basis in English common law, laws in the US (including the constitution), are not subject to textual interpretation by laypersons, but instead clarified through judicial precedent. There have been numerous exceptions to search and seizure protections in Supreme Court decisions (drunk driving checkpoints, for instance). This case law holds much more practical weight than the specific text which may be morphed over time by the corpus of precedent. This goes both ways (we have a Supreme Court endowed "right to privacy" that is nowhere in the constitution specifically, but results from cumulative analysis of several amendments). The language in the constitution may seem extremely cut and dry, but there are at least ten thousand lines of binding precedent for each word in the bill of rights.

reedlaw 13y ago
But from where does the Supreme Court get the authority to be the ultimate arbitrator on the meaning of the constitution? Surely words have meaning outside of SCOTUS interpretations.
- cdcarter 13y ago
  Marbury v Madison is the case where judicial review was formalized, but Article III offers an implied power. WIkipedia has a fairly solid article on the history of judicial review in the US.
  - otisfunkmeyer 13y ago
    link for lazy-like-me: http://en.wikipedia.org/wiki/Judicial_review_in_the_United_States http://en.wikipedia.org/wiki/Judicial_review_in_the_United_S...
- jfarmer 13y ago
  This is the fundamental difference between common law and civil law and is how most legal systems outside of former British colonies work. Common law is a more conservative approach in many ways, because laws are seen not as coming from some abstract, idealized system designed years and years ago, but strongly informed by the history of the law as lived through the people subject to it. For example, take the 4th amendment. We're protected from "unreasonable searches and seizures." If you're pulled over for an arrest, does a police officer have the right to search your car? Your glovebox? Your trunk? How about your cellphone? Is the answer, "No, unless Congress passess a law?" Is it, "No, even if Congress passes a law?" If the latter, how do we know and when? What if judges disagree? That's not even to point out that "unreasonable" not only varies between individuals but across time. John Adams didn't think the Alien and Sedition Acts were unconstitutional, for example, though Thomas Jefferson surely did. And what would be considered "unreasonable" to them might be wholly reasonable to us, or vice versa. Congress or other legislative bodies are free to pass laws that specify intent, BTW. They're just awful at it. Really awful. So awful that the same Congress might pass two laws with obviously contradictory intent. Or pass laws which are deliberately open to multiple interpretations for the sake of getting a bill passed more quickly.
rayiner 13y ago
The language of the 4th amendment is anything but cut and dry. What the heck exactly is an "unreasonable search" versus a "reasonable search?" It's hard to think of a wigglier, more context sensitive word than the word "reasonable" and that word is at the heart of the 4th amendment.
- bad_user 13y ago
  A country's constitution isn't necessarily clear, because a country's constitution must stand the test of time. When the US constitution was written, there were no phones or telegraphs and there was no Internet. It's actually remarkable that the US constitution is still relevant today. Truth be told, if the US constitution would be written or updated today, then the 4th amendment (or anything like it) wouldn't be there - you know it, they know it. The constitution is their only legal barrier in doing whatever they want to do. Also, it isn't true that "unreasonable" is meaningless. A person subject to search without being a suspect in wrongdoing is unreasonable, unless you say that everybody is a suspect and that's also unreasonable.
  - ewoodrich 13y ago
    I would strongly agree with the parent post that "reasonable" is very context-dependent and vague. In fact, if you look into the contention behind the Constitution and Bill of Rights as well, it would be clear that there would be incentive to introduce "weasel words" or phrases to pacify opposition. The "Elastic Clause" is a classic example, which ostensibly constrains, but through the introduction of the phrase "Necessary and Proper", vastly expands the power of the federal government. There are numerous examples of similar qualifications throughout. http://en.wikipedia.org/wiki/Necessary_and_Proper_Clause http://en.wikipedia.org/wiki/Necessary_and_Proper_Clause
  - rayiner 13y ago
    The 4th amendment isn't general, it's fairly specific while simultaneously being wiggly. The 4th amendment could have been written in more absolute language, like the 1st: "Congress shall make no law abridging the freedom of speech." That's general language intended to be broadly encompassing. They could have said "Congress shall make no law abridging the freedom of privacy." In contrast, the 4th amendment uses specific examples, that weren't broadly-encompassing even back then (third party records existed back then too!), and also uses the wiggle word "reasonable" which invites judicial balancing of reasonable versus unreasonable searches. The 1st amendment doesn't mention political protests specifically, or say that Congress shall make no law "unreasonably abridging" the freedom of speech. You can't just pretend the 4th amendment says whatever you want it to say. It's written using much narrower language than the 1st, and it's use of "reasonable" invites judicial balancing and exception-making in its application.

reedlaw 13y ago

But from where does the Supreme Court get the authority to be the ultimate arbitrator on the meaning of the constitution? Surely words have meaning outside of SCOTUS interpretations.

cdcarter 13y ago
Marbury v Madison is the case where judicial review was formalized, but Article III offers an implied power. WIkipedia has a fairly solid article on the history of judicial review in the US.
- otisfunkmeyer 13y ago
  link for lazy-like-me: http://en.wikipedia.org/wiki/Judicial_review_in_the_United_States http://en.wikipedia.org/wiki/Judicial_review_in_the_United_S...
jfarmer 13y ago
This is the fundamental difference between common law and civil law and is how most legal systems outside of former British colonies work. Common law is a more conservative approach in many ways, because laws are seen not as coming from some abstract, idealized system designed years and years ago, but strongly informed by the history of the law as lived through the people subject to it. For example, take the 4th amendment. We're protected from "unreasonable searches and seizures." If you're pulled over for an arrest, does a police officer have the right to search your car? Your glovebox? Your trunk? How about your cellphone? Is the answer, "No, unless Congress passess a law?" Is it, "No, even if Congress passes a law?" If the latter, how do we know and when? What if judges disagree? That's not even to point out that "unreasonable" not only varies between individuals but across time. John Adams didn't think the Alien and Sedition Acts were unconstitutional, for example, though Thomas Jefferson surely did. And what would be considered "unreasonable" to them might be wholly reasonable to us, or vice versa. Congress or other legislative bodies are free to pass laws that specify intent, BTW. They're just awful at it. Really awful. So awful that the same Congress might pass two laws with obviously contradictory intent. Or pass laws which are deliberately open to multiple interpretations for the sake of getting a bill passed more quickly.

rayiner 13y ago

The language of the 4th amendment is anything but cut and dry. What the heck exactly is an "unreasonable search" versus a "reasonable search?" It's hard to think of a wigglier, more context sensitive word than the word "reasonable" and that word is at the heart of the 4th amendment.

bad_user 13y ago
A country's constitution isn't necessarily clear, because a country's constitution must stand the test of time. When the US constitution was written, there were no phones or telegraphs and there was no Internet. It's actually remarkable that the US constitution is still relevant today. Truth be told, if the US constitution would be written or updated today, then the 4th amendment (or anything like it) wouldn't be there - you know it, they know it. The constitution is their only legal barrier in doing whatever they want to do. Also, it isn't true that "unreasonable" is meaningless. A person subject to search without being a suspect in wrongdoing is unreasonable, unless you say that everybody is a suspect and that's also unreasonable.
- ewoodrich 13y ago
  I would strongly agree with the parent post that "reasonable" is very context-dependent and vague. In fact, if you look into the contention behind the Constitution and Bill of Rights as well, it would be clear that there would be incentive to introduce "weasel words" or phrases to pacify opposition. The "Elastic Clause" is a classic example, which ostensibly constrains, but through the introduction of the phrase "Necessary and Proper", vastly expands the power of the federal government. There are numerous examples of similar qualifications throughout. http://en.wikipedia.org/wiki/Necessary_and_Proper_Clause http://en.wikipedia.org/wiki/Necessary_and_Proper_Clause
- rayiner 13y ago
  The 4th amendment isn't general, it's fairly specific while simultaneously being wiggly. The 4th amendment could have been written in more absolute language, like the 1st: "Congress shall make no law abridging the freedom of speech." That's general language intended to be broadly encompassing. They could have said "Congress shall make no law abridging the freedom of privacy." In contrast, the 4th amendment uses specific examples, that weren't broadly-encompassing even back then (third party records existed back then too!), and also uses the wiggle word "reasonable" which invites judicial balancing of reasonable versus unreasonable searches. The 1st amendment doesn't mention political protests specifically, or say that Congress shall make no law "unreasonably abridging" the freedom of speech. You can't just pretend the 4th amendment says whatever you want it to say. It's written using much narrower language than the 1st, and it's use of "reasonable" invites judicial balancing and exception-making in its application.