5 ms·

I often wonder what the founders would think of the modern interpretation of the fourth amendment at our borders. How would they have chosen to balance privacy

by ISL 13y ago

I often wonder what the founders would think of the modern interpretation of the fourth amendment at our borders. How would they have chosen to balance privacy against security in our age?

rayiner 13y ago
Considering the border search exception dates back to legislation by the First Congress in 1789, I don't think they'd have much of a problem with the current interpretation.
- gohrt 13y ago
  "border search" was extremely more narrow in scope bath then, across all dimensions.
  - rayiner 13y ago
    If a customs official thought you had contraband in 1789, he could search your person, open boxes on your ship, etc, without a warrant and without probable cause. See U.S. v. Ramsey: http://scholar.google.com/scholar_case?case=6107136132398268257 http://scholar.google.com/scholar_case?case=6107136132398268... (616-617). The difference is that this "plenary power" to search at the border has different implications today now that people carry their whole lives around with them on their phones. But that seems to me to be a fault of the people rather than a fault of the law.
    - jessaustin 13y ago
      ...a fault of the people rather than a fault of the law. An entire philosophy of government, in a nutshell! You know, it's actually OK to change laws that are bad for the people. For example, three of the four Alien & Sedition Acts were allowed to expire within three years (the fourth is only in force during declared wars), since no one actually liked them.
      - selimthegrim 13y ago
        <brechtquote> http://en.wikipedia.org/wiki/Die_L%C3%B6sung http://en.wikipedia.org/wiki/Die_L%C3%B6sung </brechtquote>
- mixmastamyk 13y ago
  What would they think of putting "suspicious" people on a list so the govt could pounce on them the minute they try to cross the border? The purpose of which is to avoid warrant.
  - rayiner 13y ago
    Read this and tell me what you think: http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts. Remember, this is less than decade after ratification.
    - einhverfr 13y ago
      It is worth noting two things about the Alien and Sedition Acts. 1. A lot of the Founders really didn't like them. Both Madison and Jefferson spoke out against the laws and argued they were unconstitutional for various reasons. 2. They were allowed to expire around the same time Marbury v. Madison was decided so it isn't clear what the early court thought of the laws.
      - tptacek 13y ago
        I agree that Alien & Sedition is a cheap shot (as would be "Lincoln suspended habeas"). It would be interesting for someone to dredge of examples of targeted surveillance and arrest policy from the time of the founders; I bet there's good stuff. You can find metadata surveillance policy in the mid-1800s!
        einhverfr 13y ago
        There are a couple of questions. The first is whether the Verizon warrant would have been considered ok to the founders. The answer is an easy "no." We have there essentially a general warrant, something they were quite familiar with and which they put in prohibitions regarding in the 4th Amendment. There is no serious question that the founders would be deeply concerned over the existence of such a warrant and nearly entirely opposed to such. However the harder question would be whether the Founders would have found the surveillance authorized by the warrant to be problematic even without a warrant or what they would have thought of the warrant. That's the big question and I don't have an answer there. I do think that the programs would almost certainly have been extremely controversialin part at least due to the existence of secret courts and wide-ranging warrants.
- maxerickson 13y ago
  I hope they would have some pause over the border zone attached to constricted friendly borders (For example, I don't see much reason to consider Michigan a border zone...). And I do see CPB vehicles dozens of miles from the bridges, apparently working hard enforcing that open border (or buying Subway).
  - tptacek 13y ago
    "Michigan" isn't a border zone. You might be referring to what I think is probably an urban myth about the "100 mile Constitution free zone stretching inward from every border", which is not a fact of law (and was in fact explicitly refuted by SCOTUS in the '70s).
    - maxerickson 13y ago
      Yeah. I can't figure what business they have in St. Ignace though.
      - maxerickson 13y ago
        This is probably the case you are talking about: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=422&invol=873 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vo...
gwright 13y ago
I tend to think that the notion of borders and jurisdictions were much more important and understood in the past than today. Easy air travel and mass communication of all forms has blurred our sense of national/jurisdictional borders, but they certainly still exist. Crossing an international border is something significant, you are leaving behind one social contract and entering into a different one.
- arvinjoar 13y ago
  It seems some of us have indeed left the old myth of the social contract behind us, just like we've abandoned the myth of the divine right of kings. Certainly easy air travel and mass communication has changed us, but I'd like to think it's our nation states who are not keeping up with the change.
  - gwright 13y ago
    I'm not sure I understand what you are saying. Are you making an anarchical argument in which the entire notion of governmental authority and/or social contracts is discarded? Or are you saying that nation-states are inappropriate sources of authority in preference for some sort of trans-national/global authority? Regardless of what you want, the fact is that we still have nation states and their associated social contracts and a unilateral effort by an indvidual to disregard or violate those norms isn't without consequences. There are certainly arguments to be made that some of those social contracts are perverse and one-sided in nature (e.g. North Korea as an extreme example). What are the flaws in the typical 'Western' social contract that you would see fixed? what is your fix?
dragonwriter 13y ago
I think that many of the founders would probably be more upset by our reflexive resort to suppositions about what the founders would think in discussions of public policy than they would be upset (or supportive) of any particular policy that we find controversial.
- victorf 13y ago
  They would be too appaled at general policy to worry about particulars for a while. "When we decided at least one congressman per 30,000 persons we were imagining, you know, one per 40,000. How can you possibly have a representative democracy like this? Wait, did you start a two-party system as well?"
  - einhverfr 13y ago
    The Electoral College more or less guarantees a two party system.
  - dragonwriter 13y ago
    > They would be too appaled at general policy to worry about particulars for a while Yeah, see, this kind of thing is mostly just a way of projecting modern preferences on to the founders. If you look at the founders as a whole, you see very little consensus on general policy. Hamilton and Jefferson, for example, didn't agree on much (and certainly not on what government of the United States should look like beyond "more like the Constitution than the Articles of Confederation".) To the extent that "the founders" would be shocked by (or even "opposed to" -- they had familiarity with enough extremes in government that they probably wouldn't be shocked by much) features of our present government, they wouldn't be the same features for different founders, and the features some of the founders opposed, others would probably find the most desirable. Hamilton -- who wanted Presidents and Senators to serve, like members of the Supreme Court, for life, would probably be generally pleased with the way the power of incumbency works out so that short of major scandal, turnover is not all that common (and be displeased with Presidential term limits being written into the Constitution.) Jefferson, OTOH, might well see things 180-degrees the opposite, given his keen focus on the need for periodic renewal. > Wait, did you start a two-party system as well? The two-party system was well in place by Washington's second election, most of the founders were still alive and active in politics -- and, for that matter, provided the leadership for both factions. So, no, I don't think they'd ask that question, except perhaps as a result of senility. They started a two-party system.

by ISL 13y ago

I often wonder what the founders would think of the modern interpretation of the fourth amendment at our borders. How would they have chosen to balance privacy against security in our age?

rayiner 13y ago

Considering the border search exception dates back to legislation by the First Congress in 1789, I don't think they'd have much of a problem with the current interpretation.

gohrt 13y ago
"border search" was extremely more narrow in scope bath then, across all dimensions.
- rayiner 13y ago
  If a customs official thought you had contraband in 1789, he could search your person, open boxes on your ship, etc, without a warrant and without probable cause. See U.S. v. Ramsey: http://scholar.google.com/scholar_case?case=6107136132398268257 http://scholar.google.com/scholar_case?case=6107136132398268... (616-617). The difference is that this "plenary power" to search at the border has different implications today now that people carry their whole lives around with them on their phones. But that seems to me to be a fault of the people rather than a fault of the law.
  - jessaustin 13y ago
    ...a fault of the people rather than a fault of the law. An entire philosophy of government, in a nutshell! You know, it's actually OK to change laws that are bad for the people. For example, three of the four Alien & Sedition Acts were allowed to expire within three years (the fourth is only in force during declared wars), since no one actually liked them.
    - selimthegrim 13y ago
      <brechtquote> http://en.wikipedia.org/wiki/Die_L%C3%B6sung http://en.wikipedia.org/wiki/Die_L%C3%B6sung </brechtquote>
mixmastamyk 13y ago
What would they think of putting "suspicious" people on a list so the govt could pounce on them the minute they try to cross the border? The purpose of which is to avoid warrant.
- rayiner 13y ago
  Read this and tell me what you think: http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts. Remember, this is less than decade after ratification.
  - einhverfr 13y ago
    It is worth noting two things about the Alien and Sedition Acts. 1. A lot of the Founders really didn't like them. Both Madison and Jefferson spoke out against the laws and argued they were unconstitutional for various reasons. 2. They were allowed to expire around the same time Marbury v. Madison was decided so it isn't clear what the early court thought of the laws.
    - tptacek 13y ago
      I agree that Alien & Sedition is a cheap shot (as would be "Lincoln suspended habeas"). It would be interesting for someone to dredge of examples of targeted surveillance and arrest policy from the time of the founders; I bet there's good stuff. You can find metadata surveillance policy in the mid-1800s!
      - einhverfr 13y ago
        There are a couple of questions. The first is whether the Verizon warrant would have been considered ok to the founders. The answer is an easy "no." We have there essentially a general warrant, something they were quite familiar with and which they put in prohibitions regarding in the 4th Amendment. There is no serious question that the founders would be deeply concerned over the existence of such a warrant and nearly entirely opposed to such. However the harder question would be whether the Founders would have found the surveillance authorized by the warrant to be problematic even without a warrant or what they would have thought of the warrant. That's the big question and I don't have an answer there. I do think that the programs would almost certainly have been extremely controversialin part at least due to the existence of secret courts and wide-ranging warrants.
maxerickson 13y ago
I hope they would have some pause over the border zone attached to constricted friendly borders (For example, I don't see much reason to consider Michigan a border zone...). And I do see CPB vehicles dozens of miles from the bridges, apparently working hard enforcing that open border (or buying Subway).
- tptacek 13y ago
  "Michigan" isn't a border zone. You might be referring to what I think is probably an urban myth about the "100 mile Constitution free zone stretching inward from every border", which is not a fact of law (and was in fact explicitly refuted by SCOTUS in the '70s).
  - maxerickson 13y ago
    Yeah. I can't figure what business they have in St. Ignace though.
    - maxerickson 13y ago
      This is probably the case you are talking about: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=422&invol=873 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vo...

gwright 13y ago

I tend to think that the notion of borders and jurisdictions were much more important and understood in the past than today. Easy air travel and mass communication of all forms has blurred our sense of national/jurisdictional borders, but they certainly still exist. Crossing an international border is something significant, you are leaving behind one social contract and entering into a different one.

arvinjoar 13y ago
It seems some of us have indeed left the old myth of the social contract behind us, just like we've abandoned the myth of the divine right of kings. Certainly easy air travel and mass communication has changed us, but I'd like to think it's our nation states who are not keeping up with the change.
- gwright 13y ago
  I'm not sure I understand what you are saying. Are you making an anarchical argument in which the entire notion of governmental authority and/or social contracts is discarded? Or are you saying that nation-states are inappropriate sources of authority in preference for some sort of trans-national/global authority? Regardless of what you want, the fact is that we still have nation states and their associated social contracts and a unilateral effort by an indvidual to disregard or violate those norms isn't without consequences. There are certainly arguments to be made that some of those social contracts are perverse and one-sided in nature (e.g. North Korea as an extreme example). What are the flaws in the typical 'Western' social contract that you would see fixed? what is your fix?

dragonwriter 13y ago

I think that many of the founders would probably be more upset by our reflexive resort to suppositions about what the founders would think in discussions of public policy than they would be upset (or supportive) of any particular policy that we find controversial.

victorf 13y ago
They would be too appaled at general policy to worry about particulars for a while. "When we decided at least one congressman per 30,000 persons we were imagining, you know, one per 40,000. How can you possibly have a representative democracy like this? Wait, did you start a two-party system as well?"
- einhverfr 13y ago
  The Electoral College more or less guarantees a two party system.
- dragonwriter 13y ago
  > They would be too appaled at general policy to worry about particulars for a while Yeah, see, this kind of thing is mostly just a way of projecting modern preferences on to the founders. If you look at the founders as a whole, you see very little consensus on general policy. Hamilton and Jefferson, for example, didn't agree on much (and certainly not on what government of the United States should look like beyond "more like the Constitution than the Articles of Confederation".) To the extent that "the founders" would be shocked by (or even "opposed to" -- they had familiarity with enough extremes in government that they probably wouldn't be shocked by much) features of our present government, they wouldn't be the same features for different founders, and the features some of the founders opposed, others would probably find the most desirable. Hamilton -- who wanted Presidents and Senators to serve, like members of the Supreme Court, for life, would probably be generally pleased with the way the power of incumbency works out so that short of major scandal, turnover is not all that common (and be displeased with Presidential term limits being written into the Constitution.) Jefferson, OTOH, might well see things 180-degrees the opposite, given his keen focus on the need for periodic renewal. > Wait, did you start a two-party system as well? The two-party system was well in place by Washington's second election, most of the founders were still alive and active in politics -- and, for that matter, provided the leadership for both factions. So, no, I don't think they'd ask that question, except perhaps as a result of senility. They started a two-party system.