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The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

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Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#41

Post by dnautics »

gizmo686 wrote: post #36
rayiner wrote: post #34

Earlier quoted context omitted.

It's not clear to me that narrow interpretations of the 4th amendment are more faithful to the Constitution than broad ones. It's true that the 4th amendment was put in the Constitution to provide a protection against warrantless searches of peoples' homes. At the same time, one of the motivating reasons for creating the Constitution as a whole was to create a powerful executive with broad authority to react to milit…

It is also worth remembering that home searches were (and are) very annoying. The type of digital surveillance that is the topic of current 4th amendment debates do not directly inconvenience the person being investigated, so this argument does not apply.

I think part of what made home searches annoying in the colonial era was that they were disproportionately applied to the political opponents of the colonialist status quo. We see those concerns reappear in the modern day in the form of, e.g. loveint, and presumably other pernicious politically motivated investigations. The federal code is so broad as to be able to be used to harass anyone for a legion of infractions at any given moment, so it is a reasonable threat.

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#42

Post by soganess »

gizmo686 wrote: post #36
rayiner wrote: post #34

Earlier quoted context omitted.

It's not clear to me that narrow interpretations of the 4th amendment are more faithful to the Constitution than broad ones. It's true that the 4th amendment was put in the Constitution to provide a protection against warrantless searches of peoples' homes. At the same time, one of the motivating reasons for creating the Constitution as a whole was to create a powerful executive with broad authority to react to milit…

It is also worth remembering that home searches were (and are) very annoying. The type of digital surveillance that is the topic of current 4th amendment debates do not directly inconvenience the person being investigated, so this argument does not apply.

Inconvenience is hardly the reason for the 4th was put in place, saying that we can moot the whole thing because technology has solved that inconvenient bit seems really disingenuous. The 4th doesn't say "no Warrants shall issue, but upon probable cause... except in cases of extreme convenience, then we can just play it by ear."

It is a clear as daylight protection of against governmental abuse. And honestly I don't know about you, but I rather have my house searched then my computers any day of the week. One's a place I sleep, the other has deep insights on me as an individual.

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#43

Post by caseysoftware »

Agustus wrote: post #9
wavefunction wrote: post #5

Earlier quoted context omitted.

Perhaps one should consider if a "constitutional scholar" is the perfect candidate to dismantle the Constitution bit by bit rather than someone who holds true to whatever your definitions of "Constitutional" are. I'll admit I voted for the guy the first time, but I was hoping for some significant differences in what we ended up with. Partially the fault of the obstructionist opposing party as well.

When he was elected, I was happy, perhaps he could enact the changes that needed to be made to reign in some of the spying, ridiculous defense contracts, and other items. I based this on the "not red or blue country" speech at the DNC convention. That hope passed quickly when he made the "I won" comment to the Republicans instead of just assuaging or listening to their now valid concerns. I would argue that the obstr…

> I would argue that the obstructionism during the first two years

After the 2008 election and until the 2010 election, it was a Democrat House with a Democrat Senate with a Democrat President. It wasn't filibuster-proof (not like they do them anymore anyway) but the Democrats were in charge.

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#44

Post by pnut »

CWuestefeld wrote: post #23
actsasbuffoon wrote: post #14

Earlier quoted context omitted.

> the healthcare act fiasco The Affordable Care Act was based on RomneyCare, which in turn was based on model legeslation from ALEC (American Legislative Exchange Counsel). They're a conservative organization that writes bills and gives them to republicans to propose. The republican reaction was just showmanship; a cry of indignation for the sake of the cameras.

This probably is way way off-topic, but.... While on the face you seem to be decrying the polar tribalism that characterizes contemporary politics, you are using that very tribalism to make your argument. But the fact that some folks who label themselves "conservative" have advocated something does not obligate all people, or even any other people, who also label themselves "conservative", to also support it. Or will…

Well you know what they say, Democrats fall in love, and Republicans fall in line.

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#45

Post by PhantomGremlin »

Shivetya wrote: post #7
awinter-py wrote: post #2

I was really hoping that barack would be the con-law president. If uchicago hasn't moved down in the rankings because their prof. emeritus is so bad at 'rule of law in practice', there's something wrong with the ranking system. It's shocking to hear a guy who was a professional legal theorist argue that something is legal based on the fact that he ordered the DOJ to write a memo.

One needs to always remember that those not yet in power have issues with how others use it, once their side is in power they are quite happy with maintaining the status quo or expanding it.

The great 1960's scholar Peter Dennis Blandford Townshend explained it thusly:

     Meet the new boss
   Same as the old boss

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#46

Post by School-Cotton »

caseysoftware wrote: post #43
Agustus wrote: post #9

Earlier quoted context omitted.

When he was elected, I was happy, perhaps he could enact the changes that needed to be made to reign in some of the spying, ridiculous defense contracts, and other items. I based this on the "not red or blue country" speech at the DNC convention. That hope passed quickly when he made the "I won" comment to the Republicans instead of just assuaging or listening to their now valid concerns. I would argue that the obstr…

> I would argue that the obstructionism during the first two years After the 2008 election and until the 2010 election, it was a Democrat House with a Democrat Senate with a Democrat President. It wasn't filibuster-proof (not like they do them anymore anyway) but the Democrats were in charge.

> It wasn't filibuster-proof

That's the exact problem, and it almost entirely invalidates your point.

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#47

Post by PhantomGremlin »

marblar wrote: post #40
lasermike026 wrote: post #28

How do I short the US government?

Treasury bonds?

Good one!

As I'm sure you know, good fucking luck shorting Treasuries. They've been in a 35 year long bull market. As Keynes noted oh so long ago, "The market can stay irrational longer than you can stay solvent."

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#48

Post by btilly »

dnautics wrote: post #39
rayiner wrote: post #34

Earlier quoted context omitted.

It's not clear to me that narrow interpretations of the 4th amendment are more faithful to the Constitution than broad ones. It's true that the 4th amendment was put in the Constitution to provide a protection against warrantless searches of peoples' homes. At the same time, one of the motivating reasons for creating the Constitution as a whole was to create a powerful executive with broad authority to react to milit…

Can you tell me where the constitution gives the president "broad powers as to national security"?

Article 2, section 2 enumerates some broad powers including "Commander in Chief".

Courts have long held that protections are very different at the border. For example a police officer cannot search your car without either your consent or "reasonable suspicion" of wrong-doing. But searches of cars at border crossings are common and legal.

Government policy has long been that the border is a lot bigger than you would expect. Government officers often exceed official policy, and courts have been known to rule in their favor when they do so. See https://www.aclu.org/constitution-100-mile-border-zone for some interesting stuff.

(I have personally been stopped by the border patrol many miles from the border...)

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#49

Post by rayiner »

dnautics wrote: post #39
rayiner wrote: post #34

Earlier quoted context omitted.

It's not clear to me that narrow interpretations of the 4th amendment are more faithful to the Constitution than broad ones. It's true that the 4th amendment was put in the Constitution to provide a protection against warrantless searches of peoples' homes. At the same time, one of the motivating reasons for creating the Constitution as a whole was to create a powerful executive with broad authority to react to milit…

Can you tell me where the constitution gives the president "broad powers as to national security"?

One of the major national security concerns at the time of the founding was domestic insurrection. Several of the Federalist Papers discuss the issue:

Federalist No. 28

> THAT there may happen cases in which the national government may be necessitated to resort to force, cannot be denied.

Federalist No. 29

> THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

Article II then invests power over the militias, when called into service of the United States, in the President:

> The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States;

In other words, the Constitution put the President singularly in charge of what the framers considered the chief tool against domestic insecurity: the nationalized militias.

Re: The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's

#50

Post by gizmo686 »

soganess wrote: post #42
gizmo686 wrote: post #36

Earlier quoted context omitted.

It is also worth remembering that home searches were (and are) very annoying. The type of digital surveillance that is the topic of current 4th amendment debates do not directly inconvenience the person being investigated, so this argument does not apply.

Inconvenience is hardly the reason for the 4th was put in place, saying that we can moot the whole thing because technology has solved that inconvenient bit seems really disingenuous. The 4th doesn't say "no Warrants shall issue, but upon probable cause... except in cases of extreme convenience, then we can just play it by ear." It is a clear as daylight protection of against governmental abuse. And honestly I don't…

There are parts of the fourth amendment. The first part is a protection against unreasonable searches and seizures. The second part is a requirement of probable cause for warrants.

The question of the heart of most modern fourth amendment debates is what constitutes a search (and, by extension, requires a warrant). For example, does the government require a warrant to work with the phone company to tap my line [0].

The original push for the 4th amendment protections were abuses of the writ of assistance, wherein British authorities could search any house and seize contraband. [1]. As far as I can tell, the fourth amendment was designed as a protection of property rights and against governmental harassment. I have not seen any evidence that it was written with privacy rights in mind.

In Katz v United States [2] Justice Stewart, in the majority opinion, wrote:

the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. [n4] Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. [n5] But the protection of a person's general right to privacy -- his right to be let alone by other people [n6] -- is, like the [p351] protection of his property and of his very life, left largely to the law of the individual States.

[0] Or rather, does the fourth amendment require the government to get a warrant. [1] Yes, this process was highly suspectable to abuse. The most relevant modern analogy would be civil forfeiture. [2] https://www.law.cornell.edu/supremecourt/text/389/347#writin...

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