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  Not Too Strict To Apply Justice
Posted by FoM on June 17, 2001 at 21:34:11 PT
By George F. Will 
Source: Washington Post 

justice Danny Kyllo was not growing rhododendrons in his home on Rhododendron Drive in Florence, Ore., in 1992. He was growing marijuana, which, when cultivated indoors, requires high-intensity lamps that generate considerable heat and, in this instance, generated a Supreme Court case.

Last Monday's decision merits attention because the opinion for the closely divided (5-4) court was written by Justice Antonin Scalia. He is commonly, and not improperly, called a "strict constructionist."

He describes himself as an "originalist," meaning that he construes the Constitution by reading the text as its words were used and understood at the time by those who wrote them.

The logic and structure of the document illuminates the original meaning of those words. And Scalia's originalism was no impediment to ruling that Kyllo's Fourth Amendment right to protection against unreasonable searches was violated by a technology never envisioned by the Constitution's authors. Dissenting from his civil libertarian opinion were three more-or-less conservative justices (Rehnquist, O'Connor and Kennedy) and the court's most liberal justice, Stevens.

Acting on information from informants and utility records, law enforcement officers used an Agema Thermovision 210 thermal imager to detect that the roof over Kyllo's garage and a side wall of his home were unusually hot. Using that evidence, they acquired a search warrant, found more than 100 marijuana plants and arrested Kyllo. He said the evidence was illegally obtained because the warrant was issued partly on the basis of the thermal imaging results, and the imaging itself constituted a search conducted without a warrant, in violation of the Fourth Amendment protection against unreasonable searches.

The amendment was written in the context of the English common law principle that "the eye cannot by the laws of England be guilty of a trespass." However, more than the law enforcement officers' eyes were involved in the scan of Kyllo's home that was conducted from the street and took only a few minutes. The question for the court, as Scalia posed it, was: How much technological enhancement of ordinary perception from such a vantage point, if any, is too much?

Scalia, joined by Souter, Thomas, Ginsburg and Breyer, stressed that the thermal imaging technology used is "a device that is not in general public use" and a homeowner has a reasonable expectation of privacy for activities that could not be detected without technologically enhanced eavesdropping. But, then, such eavesdropping is, in a sense, a contradiction in terms.

There often is wisdom in the logic of common language, so notice the derivation of the word that would commonly be used to describe what the government was doing: "eavesdropping." The late Justice Hugo Black noted that people surreptitiously seeking information used to lurk in the "eavesdrop," in the shadow under a building's eave. This may not have been nice, but neither was it invasive. It was the equivalent of surveillance by the "naked eye" -- in this example, the officers' eyes unassisted by any sense-enhancing technology.

Privacy is neither an easily identifiable thing, like the Grand Canyon, nor an absolute value. However, the concern of the Constitution's Framers for protecting privacy began by assuming that privacy of the home is the most precious and most easily defined sort. In Kyllo's case, Scalia offered this "originalist" criterion: What preserves the "degree of privacy against government that existed when the Fourth Amendment was adopted"? Scalia and four colleagues concluded, "On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search."

Stevens, writing for the three other dissenters, sided with law enforcement, accusing the majority of abandoning "judicial restraint" as it overturned the 9th Circuit, the home of liberal judicial activism, which had ruled against Kyllo. Stevens argued that searches of "property in plain view" are presumptively reasonable. Scalia responded that it is "simply inaccurate" to say, as the dissenters did, that the thermal imaging did not obtain information about the home's interior, the most protected realm of intimacy.

Congress is about to step onto the dark and bloody ground of the judicial confirmation process. Jurisprudential theories -- "strict construction," "originalism," the Constitution as a "living document" that "evolves" to meet "new problems" -- will be bandied. Some senatorial and other critics of President Bush's judicial nominees will portray those nominees as too much like Scalia, and hence too strict in their "originalist" constitutional construction to understand the applicability of the document to modern conditions. The decision in the Kyllo case should, but probably will not, cause these critics second, or perhaps first, thoughts.

Source: Washington Post (DC)
Author: George F. Will
Published: Sunday, June 17, 2001; Page B07
Copyright: 2001 The Washington Post Company
Contact: letterstoed@washpost.com
Website: http://www.washingtonpost.com/

Related Articles:

X-Ray Vision - Time Magazine
http://cannabisnews.com/news/thread10086.shtml

Can't Scan Without a Warrant
http://cannabisnews.com/news/thread10027.shtml

High-Tech Devices Require a Warrant
http://cannabisnews.com/news/thread10026.shtml


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Comment #3 posted by Dan B on June 18, 2001 at 17:17:31 PT:

Thanks, Robbie
I just changed a few words to make it sound more like a letter and sent it in.

Dan B

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Comment #2 posted by Robbie on June 18, 2001 at 09:58:33 PT
Good work Dan
I think you should send that to George Will...it would be interesting to see how he slants Scalia's false "strict constructionism" against the "hoodoo-voodoo long-haired aging hippie-freak drug legalizers." (he didn't say all that together ever, but he's used all of those words)

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Comment #1 posted by Dan B on June 18, 2001 at 01:54:01 PT:

Antonin Scalia: Constitutional Coward
Supreme Court Justice "construes the Constitution by reading the text as its words were used and understood at the time by those who wrote them."

Yep, Antonin Scalia wants to interpret the Constitution as it was originally intended, unless Congress has passed an unconstitutional exception to the Constitution, such as the Controlled Substances Act.

With such a noted "defender of the Constitution," who needs the Constitution, right? Clearly, he not only believes that Congress can overturn important constitutional protections through mere legislationn (not by amendment), but that the Supreme Court, which is supposed to be one of the "checks and balances" against the Congress, has no right to overturn unconstitutional laws passed by the Congress. Both assumptions are patently false.

Here is what the Constitution says about the role of the Supreme Court in ARTICLE III, Section 2:

The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admirality and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign States, citizens or subjects

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.


Okay, now that last part (bold added by me) sounds like it provides for the kind of loophole that Scalia likes to use whenever he is too cowardly or sadistic to rule an obviously unconstitutional law unconstitutional, but it doesn't.

Notice that the bolded clause, as written, refers to jurisdictional exceptions; that is, the clause bolded above does not refer to exceptions to constitutional laws (Congress is not allowed to make exceptions to the Constitution, except by constitutional amendment, as they did with the 18th Amendment (prohibiting alcohol, which clearly flew in the face of amendments I, IV, IX and X, and was later repealed by another constitutional amendment, the 21st) any more than it applies to congressional exceptions to the facts. It applies to jurisdictional exceptions only.

A reasonable question, then, is has Congress passed into law a jurisdictional exception for the Controlled Substances Act? No, it has not. Yet Antonin Scalia and all of his cronies in the SC are content to pretend that they have no jurisdictional authority over the CSA. The fact is that for any federal drug case that has yet come to their attention, they could have easily ruled that the legislative authority behind all federal drug laws (the CSA) is unconstitutional, thus the drug laws are unconstitutional.

They have not, which is a reflection of both their cowardice and their lack of concern for the welfare of the nation.

Dan B

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