Wednesday, May 10, 2006

What part of "unreasonable" don't you understand?

The press in general has no better clue about Constitutional Law than most average Americans. The Bill of Rights is not only divided into 10 Amendments, but also subdivided into Clauses that ensure specific rights, have separate effects and different standards. For example, the First Amendment has no less than six Clauses: Free Speech Clause, Free Press Clause, Free Exercise [of religion] Clause, [no] Establishment [of religion] Clause, the Peaceable Assembly Clause, and Freedom to Petition Clause. Each Clause guarantees a different right and has a different meaning and a different standard for enforcement than the others under the Constitution as interpreted by Supreme Court case-law. The Clauses are read separately unless circumstances bring them into conflict (i.e., pick a school prayer case decided by the Supreme Court -- the Free Exercise Clause and Establishment Clause wind up at odds).

The Fifth Amendment has the Grand Jury Clause, Double Jeopardy Clause, Self-Incrimination Clause, Due Process Clause, the Takings Clause, and the Just Compensation Clause. Understand? The ten Bill of Rights Amendments (especially the primary substantive ones: First, Fourth, Fifth, Sixth, Seventh, Eighth) collectively contain more than just 10 rights or one for each Amendment.

Adam White understands this. He is a former clerk for the DC Circuit Court of Appeals, which is commonly (and erroneously) referred to as the nation's second-highest court, and in NRO (link in title) he details why CIA-Director nominee General Hayden interprets the Fourth Amendment a lot better than the average American and journalist:

As the Fourth Amendment provides (emphasis added),
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
On its face, the amendment only provides for protection against unreasonable searches and seizures, while it later provides that no warrant shall issue without “probable cause.” Landay and Hayden’s critics mistakenly apply the “probable cause” requirement to the “searches and seizures” provision. That reading is erroneous on its face; to apply the amendment’s warrant requirements to the searches and seizures clause would also require that searches be supported “by oath or affirmation,” with the objects of the search described in advance. Hayden’s reading—that searches must only be “reasonable”—is the better reading.

Hayden’s critics’ mistaken reading of the Fourth Amendment is not even supported by the Supreme Court’s decisions . . . the Court has explicitly warned that the two terms are not equivalent in all circumstances. In the Vernonia School District 47J v. Acton (1995), for example, the Court roundly rejected Hayden’s critics’ reading of the amendment (emphasis in original):
Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

Read the whole piece.

No comments: