peeping tom and search by police motion to suppress

[BOR]

I don't see a lot of things in the Constitution but that doesn't mean they are not relevant or accepted as being constitutional.

Now, if you want to get so literal in the reading, I do not see any allowance for a search of any type without a warrant. Do you really want to argue literal statements?

True. Many S&S elements were doctrinal developments, the automobile exception, the plain view and plain feel doctrines, etc.

One ruling was the 4th AM protects people, not places.

Taking into consideration the 4th AM was not even made applicable to the states until 1949. Incorporation of the BOR did not start until the 1920's and beyond. The great CJ Marshall in Barron v. Baltimore ruled the BOR is NOT applicable to the states.

Yet overturning themselves, now today most of it is. States do not have to Indict by Grand Jury, the Vicinage clause has not been incorporated, but most of the BOR applies.

Wolf, 1949, applied the 4th AM to the states, BUT, in the same ruling declined to apply the federal exclusionary rule. In Mapp v. Ohio, however, they overturned Wolf in that respect and the ER was made applicable to the states.

Since it's inception in 1789, they have overturned themselves over 200 times, mostly NON Landmark decisions.

If we went strictly by the actual Constitution, the BOR would only bind the federal government.

 

[tranquility]

All "doctrinal developments" were an attempt to describe what is reasonable and the effect of the government acting unreasonably.

 

[justalayman]

All "doctrinal developments" were an attempt to describe what is reasonable and the effect of the government acting unreasonably.

exactly and as such, they are not within the Constitution.

Like I said, if you want to get into a strict literal reading, you will lose all of the SCOTUS decisions because that is what they do: attempt to determine what the literal writing means. You cannot do that with a simplistic textual reading. The spirit of the laws cannot be determined by simply reading a law. That means one must go outside the document and seek.

the problem with you and Scalia's approach is that any term that is not a factual term is subject to interpretation. That interpretation is going to be based on a person's opinion of the term. The means the mores of society at the time the interpretation is made will affect what the interpretation is. So, unless the person making the current interpretation believes they are superior to the writers of the law, we must seek out the spirit of the law which does require including historical context that was used when they wrote the law.

If you do anything else, the courts are then writing law which is expressly forbidden by our constitution, although our courts, especially the SCOTUS, have gotten away with it under the guise of interpretation.

It is not their fault you don't understand the clear meaning of the Constitution

. . I'm still waiting for you to show me where the 4th allows ANY intrusions let alone what is considered to be a reasonable one, without a warrant. Either you argue we must take a literal reading of the constitution which does not allow for any search without a warrant or you can agree that what we accept today is an interpretation, or opinion, of what we believe the writers of the Constitution intended it to mean, not what the current readers believe as that would in effect be writing law but what the actual writers intended.

so, do we go by the literal text or are we allowed interpretations? and if interpretations, are those interpretations what we in our current time interpret them to be or must we attempt to interpret what the writers intended the laws to mean?

 

[tranquility]

Sorry, but there is no such thing as a "literal" term.

What is unreasonable?

What is a house?

What is a person?

What is a paper?

What is a search?

What is a seizure?

What is a warrant?

What is probable cause?

This is not math, this is language. The map is not the territory.

 

[BOR]

If you do anything else, the courts are then writing law which is expressly forbidden by our constitution, although our courts, especially the SCOTUS, have gotten away with it under the guise of interpretation.

Interpertations are the function of the courts, this is fine.

Take for instance Article 1;

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

The bolded is arrest on the CIVIL process only. Does it say this LITERALLY, NO, but the SC has ruled it as such.

My state, as most do, have privilege from arrest statutes. Mine includes a person going to or coming from a worship service. It only applies to arrest on the Civil process, not criminal.

Debtors prisons are obsolete, but our constitution says they can only be imprisoned for debt for fraud. IF a person is to be subject to such, a Civil arrest warrant can be applied for.

 

[justalayman]

E=tranquility;2535430]Sorry, but there is no such thing as a "literal" term.

1 a : according with the letter of the scriptures b : adhering to fact or to the ordinary construction or primary meaning of a term or expression : actual <liberty in the literal sense is impossible — B. N. Cardozo> c : free from exaggeration or embellishment <the literal truth> d : characterized by a concern mainly with facts <a very literal man

of course there is such thing as a literal term. Items such as car, house, person, and warrant have literal definitions. Unreasonable, seizure, and probable cause require an interpretive reading.

What is unreasonable?

What is a house?

What is a person?

What is a paper?

What is a search?

What is a seizure?

What is a warrant?

What is probable cause?

This is not math, this is language. The map is not the territory.

 

[tranquility]

Is an apartment a house? What about if you're homeless, is a cardboard box your house? What if you live under an overpass? Is an attached garage a house? What about a detached garage? What about a shed on your property? Is a doghouse your house? What if you're staying at a friend's? What if you're squatting at an abandoned house? What if you live in your car?

What is the "literal" meaning of a house?

 

[justalayman]

BOR;2535475]Interpertations are the function of the courts, this is fine.

I wholly agree BUT it the difference between interpretation and effectively re-writing of a law is a fine line.

and when one interprets, is it correct to attempt to determine what the writer intended or is it correct for the current interpreter to use their personal belief to possibly alter what the original intent of the law was meant to be? That can cause a huge difference in the outcome of the opinion rendered.

Tranq seems to believe the spirit of the law has no place in the interpretation, only current beliefs and understanding of the law. Seems like in such a situation, the interpreter is quite possibly re-writing the law. It happens all of the time and is one of the reasons even SCOTUS opinions are over turned from time to time. A new set of minds can come to a very different conclusion using the same set of facts and laws.

Debtors prisons are obsolete, but our constitution says they can only be imprisoned for debt for fraud. IF a person is to be subject to such, a Civil arrest warrant can be applied for.

but the fraud actually has nothing to do with the debt, necessarily. It is a separate act.

My state, as most do, have privilege from arrest statutes. Mine includes a person going to or coming from a worship service. It only applies to arrest on the Civil process, not criminal.

I don't see this as an interpretive use of a law. It is simply an accommodation the legislature of your state decided was a worthy act.

The bolded is arrest on the CIVIL process only. Does it say this LITERALLY, NO, but the SC has ruled it as such.

so, as the Constitutional scholar, what was their justification for this opinion? Either they had a basis for the interpretation the used or they have effectively re-written law.

 

[BOR]

so, as the Constitutional scholar, what was their justification for this opinion? Either they had a basis for the interpretation the used or they have effectively re-written law.

Scroll down to Privilege from arrest for annotations;

CRS/LII Annotated Constitution Article I

Remember the Larry Craig arrest in the bathroom deal at the airport? He tried to use this clause to invalidate his arrest, as he was flying to Washington.

 

[justalayman]

Is an apartment a house? What about if you're homeless, is a cardboard box your house? What if you live under an overpass? Is an attached garage a house? What about a detached garage? What about a shed on your property? Is a doghouse your house? What if you're staying at a friend's? What if you're squatting at an abandoned house? What if you live in your car?

What is the "literal" meaning of a house?

I said it has a literal definition so apply this:

adhering to fact or to the ordinary construction or primary meaning of a term or expression

to this:

house

and you get this:

1 : a building that serves as living quarters for one or a few families

anything else is interpretation of the term.

so, do you want to use interpretation or the literal term in the discussion? I am the one arguing you cannot use the literal definition, remember? and since even a textual reading of the 4th does not define the term, you must interpret what the term was intended to mean. So, to be faithful to the intent of the law, you must apply the term to the historical use of the term when the law was written.

You are the one suggesting exclusion of the historical research to determine (interpret) the meaning of the use.

He says the text of the Constitution should rule. Not the thoughts of the founding fathers or the prevailing thoughts of the moment or international law.

I can research the use of the term to discover what the writers of the law considered to be a house and apply that use. You are the one with no definition available other than the literal definition. So, what is a house?

why do you argue a position and then do everything to prove yourself wrong? I just don't get it.

 

[tranquility]

You're arguing in circles now and are taking a one sentence description of textualism as the entire meaning. It differs from original intent as an incorporated contract differs from what the people think it might mean. What would a reasonable person looking at the text think it means?

I believe in the social contract theory of limited government.

Tranq seems to believe the spirit of the law has no place in the interpretation, only current beliefs and understanding of the law.

Is this an attempt at a straw man or do you really think this is what I argue? I think we have a deal. The Constitution. You don't get to change the deal just because the Spirit moves you. The only reason I allow government to exist is because I find use in it. I understand there are many who feel we are the servants (Not justalayman. I think we actually want the same results, it's just that I accept a certain fair and agreed upon process as more important than the result.) and not the master.

We the People.

 

[justalayman]

tranquility;2535574]You're arguing in circles now and are taking a one sentence description of textualism as the entire meaning. It differs from original intent as an incorporated contract differs from what the people think it might mean. What would a reasonable person looking at the text think it means?

in the case of the 4th, there is no contextual defining of the terms. You are the one that wants to limit the basis of any interpretation to the document of the Constitution. I am simply stating that is not possible.

I believe in the social contract theory of limited government.

ok but that in itself means you are going to interpret terms differently than one with different views. So, how do you decide who is correct? Since you are limiting yourself to only what is written in the Constitution, I believe it really puts you at a disadvantge.

Is this an attempt at a straw man or do you really think this is what I argue?

that is what you have stated. To include historical beliefs and justifications would mean you seek the spirit of the law. You have stated very clearly you do not believe historical intent has any place in interpretation of the constitution. That would mean you do not accept the spirit of the law argument.

I think we have a deal. The Constitution. You don't get to change the deal just because the Spirit moves you

.Now who is altering a definition to their means. I am not suggesting defining the law on how the Spirit moves me. The spirit of the law defined as a determination of what the intent of the writer of the law intended for it to mean and do. That is why the SCOTUS does reference historical documents such as the Federalist.

The only reason I allow government to exist is because I find use in it.

well, I hate to wake you up but at this time, it is not within your control to abolish our government so it will exist whether you allow it or not.

A person who prescribes to the idea of a society without a government is an anarchist. There can never be a lasting anarchy. It is simply impossible. It will quickly evolve to incorporate some form of government.
I prefer government to exist because it is a necessity. I simply want a government that allows as many individual freedoms as is possible.

I understand there are many who feel we are the servants

have you ever watched the Matrix movies? I believe that is a pretty fair representation of our current society. Do I believe we are the servants? Absolutely. Do I believe that is proper? Absolutely not.

Is there anything we can do about it? I do not believe so, at least while retaining the existing government. The problem with attempting to cause such a widespread change of the government is: all it does is reset the clock. At one time, we were subjugated by the British government. We rebelled only to become subjugated by our own government. If we were to remove the government we currently have; we would simply install another government which would subjugate the citizens.

We can attempt to effect changes that make our lives more bearable but in reality, we cannot change the world.

We the People.

are getting our asses thoroughly kicked. We do not have any true control of our government.

 

[tranquility]

Sigh... I'll not substantively respond as I tire of the circles beyond saying you are not correctly summarizing my beliefs on this philosophically complex topic.

Info edit:
Go to www.ssrn.com and use the search term textualism for a variety of differing opinions on the topic. At least we can be talking about the same thing.

 

[janelle830]

so in my case do you guys think i have a shot?

i talk to my lawyer and he said that the texas exclusionary is all shot to hell nowadays, it would be hard to use this as a ground to get the evidence suppressed. what position could i take in this matter as far as a good argument

 

[tranquility]

A shot? It's worth a motion to exclude. The motion will include the search by the ex friend and if her call to the police was valid probable cause combined with an exigent or other exception to the need of a warrant to search the residence with the view. It will have the issue of if the space where the activity was viewed from is one where the public is not usually allowed. It will deal with if there was enough attenuation from your consent to enter and if the drugs were in plain sight when you opened the door. Finally, it might look to if things were within your wingspan from the place you were arrested. Your attorney will need to do it as each question will need to be resolved with case law. There are many issues which you have to win to get to exclusion, but there is a chance you could be on the right side of all the issues.