Wednesday, November 24, 2010

Are the Feds allowed to track you day and night -- using a GPS device secretly fitted to your car?

Appeals court says No; Decides tracking violates 4th Amendment ("unreasonable searches")
"A sharply-divided federal appeals court has rejected a Justice Department bid to overturn a ruling saying the government’s use of GPS technology to track a suspect violates the Fourth Amendment.

In a case closely watched by national civil liberties groups, the 5-4 ruling by the U.S. Court of Appeals for the District of Columbia Circuit Friday came three months after a three-judge panel reversed the life sentence of man convicted of running a drug ring from a D.C. nightclub....

Judge Ginsburg also wrote that a "reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination and each place he stops and how long he stays there."

Source

I don't usually follow 4th Amendment issues on this blog but where government snooping into private life is concerned, I'm interested. A lack of any privacy would certainly chill speech.

39 comments:

Use the Name, Luke said...

"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."
— Amendment IV

If the government (TSA) is free to violate the security of our persons with an invasive warrantless search, what's the problem with sticking a GPS to a car? That's far less objectionable.

Anonymous said...

Does this court decision also hold true for the very popular On-Star tracking system which keeps tabs of every move you make? How about the GPS tracking system in your fancy, new cell phone?

Anonymous said...

If the government (TSA) is free to violate the security of our persons with an invasive warrantless search,...

This is a sticky situation, but the fact of the matter is that when you purchase an airline ticket, you are effectively waiving your 4th Amendment rights.

The ticket includes a "security fee" which is in essence an agreement to be searched by the TSA.

It ain't pretty, but the SCOTUS has already ruled that the TSA may search people as long as they are searching for weapons and explosives and are not discriminating in searching certain people.

As for the OnStar and GPS in your phones, they are private agreements and are not subject to the 4th Amendment on their face.

jwenting said...

otoh a 9th circus (I think it was) decision a while ago stated it was quite constitutional to attach such a device.

Anonymous said...

Attaching a device WITH a search warrant is fine. If they are lazy and don't get one then, unfortunately, the criminal must go free, if that is what convicted him/her.

There is no right to fly, therefore you have the choice of getting to your destination without dealing with TSA. I don't like the TSA and think it is 99% show to calm the public, but I don't see the constitutional issue - flying is a free choice.

Anonymous said...

"[W]e can not allow them to come in to our country and proselytize in their mosques and talking about overthrowing our government, our constitutional democracy, saying they want to replace it with sharia, and then we say that’s ok, that’s freedom of speech, that’s freedom of religion; that’s not, that’s sedition…this is not going away…there are two ways you end the war…you win or you lose…How do you fight against a guy who is willing to die, you grant him his wish, ok…you kill these guys…"
-- Lt. Colonel Allen West

Use the Name, Luke said...

"There is no right to fly,"

I must have missed it; where is the travel exclusion to the 4th Amendment?

Government tyrannies always use "security" as an excuse for such depredations. And travel restrictions are usually a mark of a government tyranny.

My daughter lives on the other side of the country. The next best alternative to flying is to take the train, which takes 3 days! Is that really a reasonable alternative? No. So either we have to give up our right to travel freely or a right which the Constitution expressly forbids the government to violate.

Though the Constitution doesn't expressly enumerate the right to travel, I think you would have a hard time arguing that it's not a basic component of liberty. It would also be covered under the 9th Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
— Amendment IX

"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."
— Benjamin Franklin

Use the Name, Luke said...

BTW, the "enhanced" security measures are not working. For example:

Security Fail: Mythbuster Says He Passed TSA Scan With 12-inch Razor Blades

…once again reinforcing the conclusion that TSA actions are not a system for securing flights, rather they're a system for bothering people.

Anonymous said...

To me, this is kind of a grey area when you read the constitutional amendment. Is tracking your car a "search and seizure"? While the police need a search warrant to search the inside of your car, they are allowed to tail suspects and follow them wherever they go without a warrant since vehicles travel on public roads. Don't get me wrong, I don't like the idea of big brother any more than anyone else.

Anonymous said...

I must have missed it; where is the travel exclusion to the 4th Amendment?

There is no exclusion for the "right to fly" as the "right to fly" does not exist.

When flying, you make a contract with the carrier that the TSA can do the inspections.

Though the Constitution doesn't expressly enumerate the right to travel, I think you would have a hard time arguing that it's not a basic component of liberty.

Once again, there is no right to travel. Stop with the strawman. However, the Constitution does give Congress the right to regulate interstate commerce. That includes airlines.

So what you have is the Congress exerting its legal authority on the airlines to say that "if you want a plane in the sky, this must occur..." You then have the airline making a private contract with the passenger that says "if you want to get on this plane, you agree to our terms and that includes the TSA."

Anonymous said...

Wrong! There is a right to travel by a free people. I think what you mean is there is no express right to fly. That is not the same thing as a right to travel.
Also, attaching s GPS to a car is a violation of the fourth amendment although activist judges seem to find a way around everything. I have a right to be secure in my person, home and effects. Without a warrant they can't just do what they want to me.

Anonymous said...

Also, attaching s GPS to a car is a violation of the fourth amendment although activist judges seem to find a way around everything.

The reasoning is that the car is sitting out on the street or in a driveway and therefore there is no expectation of privacy. This is akin to cops simply watching you without a warrant as you drive to different places.

To some extent, I can see the argument that a car on a street has no "privacy." The cops aren't searching the car, just monitoring its whereabouts.

I can almost see that reasoning. However, the case out of the 9th Circuit dealt with a car in a private driveway. I believe there is some expectation of privacy there by the fact one is on a private driveway. I shudder to think if this means that the cops can enter a garage to put a tracking device on a car.

The problem right now is that three courts - the 9th, one in Idaho and now the DC Court have come up with different rulings on this issue.

The issue has to head to the SCOTUS.

Spurwing Plover said...

say NO to BIG BROTHER say NO to the NWO say NO to OBAMA say NO to the UNITED NATIONS

Use the Name, Luke said...

Anon 6:54,

So you're okay with the idea that the government can force me to give up a right because they give me the choice of which right to give up?

Just… wow…

"If ye love wealth better than liberty,
the tranquility of servitude
better than the animating contest of freedom,
go home from us in peace.
We ask not your counsels or your arms.
Crouch down and lick the hands which feed you.
May your chains set lightly upon you,
and may posterity forget that you were our countrymen.
"
— Samuel Adams

Anonymous said...

So you're okay with the idea that the government can force me to give up a right because they give me the choice of which right to give up?

There is no "right to fly," Luke, therefore your argument is a strawman at best.

Your liberty is not being denied as you still have the right to move freely about the country. What you are really whining about is that you want a certain way to move, and believe that any restrictions or agreements that you believe infringe on that method are somehow un-Constitutional.

They are not.

No one is restricting your movements. Until you understand that, you are just barking in the wind.

Use the Name, Luke said...

"There is no "right to fly," Luke, therefore your argument is a strawman at best."

Go back and look at my earlier comments. If I want visit my daughter on the other side of the country (or have her visit me), the alternative is a train trip which takes 3 DAYS each way. If one week is all either of has (and that's normal) then is that really a realistic alternative?

The answer is simple: NO!

It is a restriction on the right to travel. It's not the same degree as "you have the right to travel freely… as long as you walk there", but it's exactly the same basic concept.

If you can explain to me how the only way to avoid having constitutionally protected rights violated is to accept limitations on where someone can travel to is somehow not a restriction on travel, then you will have won the argument. As it is, I think your position is so unreasonable, that I couldn't even frame the question without having to dig up synonyms for "restricting travel" to ask you how restricting travel isn't restricting travel.

Use the Name, Luke said...

BTW, your excuse for accepting the violations—security—is Busted.

Also, see this.

Use the Name, Luke said...

What the heck is wrong with this site? It keeps eating comments that have absolutely nothing wrong with them!!!

Use the Name, Luke said...

Yeah, you win.

Blogspot won't allow me to post my responses. (And there's no bad language at all in them! Unlike some of Anonymous' posts.) What a ******* waste of time!!

I guess restricting travel isn't really restricting travel.

And the enhanced searches really are making us safer even though they're not working.

::: rolls eyes :::

Use the Name, Luke said...

Enhanced security claim: Busted

Anonymous said...

I guess restricting travel isn't really restricting travel.

So by your logic, people shouldn't need driver's licenses as that "restricts travel," right? Boats shouldn't have to be registered and the boat pass a Coast Guard certification because that "restricts travel," right?

That is really what you are saying.

You can still travel all you want. You can go across the country. There is no restriction on your movements at all. That is liberty and freedom.

You are deliberately confusing the method of travel, which can be regulated according to the Constitution, and the ability to travel in general.

The two are not the same, and you know it.

Use the Name, Luke said...

I tried to explain my logic but blogger ate it.

Short form: I cannot visit my daughter (see above) without being forced to give up my 4th Amendment rights.

How is that NOT a restriction on travel? It's a restriction on how far we can travel, especially since time is always a constraint. It's not the same degree as "You're free to travel as far as you can walk", but it's the same fundamental logic.

"which can be regulated according to the Constitution,"

Really? Where? I call BS. The Constitution ABSOLUTELY FORBIDS what the TSA is doing. Why do you have so much trouble understanding what is clearly in the Constitution, while at the same time, applying more force to something you apparently read in the blank spaces between the lines?

Did you check out the video I linked? Giving up our rights is NOT making us safer.

Anonymous said...

Short form: I cannot visit my daughter (see above) without being forced to give up my 4th Amendment rights.

You can't drive? You can't walk? You can't ride a bike? You can't hitch a ride?

Of course you can visit your daughter. No one is preventing you from your right to move around the country.

Your position is akin to saying that your First Amendment rights are absolute, therefore you have the right to disrupt a trial, speak on the floor of Congress, etc. Under your "logic," you believe that the right of liberty means that you have the right and ability to say how those rights are fulfilled.

They are not, and you know it.

Really? Where?

Look under Article 1, Section 8. See the "Interstate Commerce Clause?" That gives the Congress the ability to regulate businesses that cross state lines.

Congress then has the power to say "if a business is going to fly, they must search for weapons and explosives." In fact, a Supreme Court case stated just that.

Why do you have so much trouble understanding what is clearly in the Constitution,

I call BS. Where is the right to fly in the Constitution?

Did you check out the video I linked? Giving up our rights is NOT making us safer.

Just out of curiosity, do you think that the Mythbuster guy was going to blow the plane up or attack someone?

If your answer is "no, he wasn't," then we are no more or less safe than we were before.

If your answer is "yes, he was going to blow the plane up or attack someone on the plane," then why aren't you calling for his arrest as a terrorist?

Use the Name, Luke said...

"You can't drive? You can't walk? You can't ride a bike? You can't hitch a ride?

Of course you can visit your daughter. No one is preventing you from your right to move around the country.
"

If it cannot be done in available time, it cannot be done.

Here's how you can win the argument: Explain how limiting how fast you can travel is not a restriction on travel.

Here's how irrational I think your argument is: Even in posing the challenge, it was absolutely necessary to use a synonym for "restrict" ("limit"). There was no way to not use such a synonym.

"Your position is akin to saying that your First Amendment rights are absolute,"

That's certainly how judges have been treating it. Under their reinterpretations, anyone can say or do anything under the first amendment, including showing porn to children; anything, that is except make their case for who the government should be run (McCain-Feingold) which is one of four central purposes of the thing.

And of course, everyone is free to exercise their religion, right? Not hardly, never mind that "free exercise" is precisely the words used.

"Look under Article 1, Section 8. See the "Interstate Commerce Clause?" That gives the Congress the ability to regulate businesses that cross state lines."

The word is "commerce".

A: What is the definition of "commerce" used by the framers? It's obviously not the one you're using.

B: It does not apply to passengers. They are not the ones engaging in commerce. That would be the airlines.

C: An "emenation of a penumbra" does not give the government the right to IGNORE other parts of the Constitution that they don't like.

D: The 4th Amendment EXPLICITLY states that no searches are to be done without a warrant based on probable cause. There are no stated exceptions to that restriction.

Let me put (D) this way: Are you willing to let the police wander through your home anytime they like on the excuse that they're hunting for terrorists?

"Just out of curiosity, do you think that the Mythbuster guy was going to blow the plane up or attack someone?"

Did you get whiplash from dodging that point?

They are searching for WEAPONS. They MISSED weapons carried onto the plain BY ACCIDENT. Therefore, they CANNOT catch weapons carried onto the plane in a way INTENDED to EVADE DETECTION. Therefore, the enhanced searches are COMPLETELY INEFFECTIVE FOR ACHEIVING THEIR STATED GOALS!

Anonymous said...

If it cannot be done in available time, it cannot be done.

So now you believe that your liberty is dependent upon the government supplying you the TIME to accomplish something?

Please show me where "time" is in part of the Constitution. (I am still waiting for you to show where "flying," or "airline travel," or "travel by any means" is in the Constitution.

Here's how you can win the argument: Explain how limiting how fast you can travel is not a restriction on travel.

Because rate of travel is not the same thing as travel. Rate and travel are two different things.

Argument over.

That's certainly how judges have been treating it.

Factually wrong. You can't yell "fire" in a theater. You cannot harass people on the job. You cannot make threats. You cannot libel or slander people. Want me to keep going?

And of course, everyone is free to exercise their religion, right?

The sound you just heard was your argument that rights are absolute hitting the floor. You just killed your own argument on travel.

It's obviously not the one you're using.

Ummm... try again. It is precisely the one I am using and for the precise reason the framers put it in the Constitution.

That would be the airlines.

Right. The airlines that are carrying the people and cargo. The Commerce Clause applies and has been ruled as applying.

An "emenation of a penumbra" does not give the government the right to IGNORE other parts of the Constitution that they don't like.

Lucky for us, they are not.

D: The 4th Amendment EXPLICITLY states that no searches are to be done without a warrant based on probable cause.

Let me state this for you clearly:

NO.

IT.

DOES.

NOT.

Your reading of the 4th Amendment, like your supposed "understanding" of rights is deeply flawed.

Here's what the Amendment actually says:
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.

Read it again because I am sure you missed it:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

The search of a person for weapons or explosives has been held not to be "unreasonable."

Also notice that contrary to your ranting, there is no "warrant" required for a search if the search is "reasonable."

Did you get whiplash from dodging that point?

What point was that? The fact that you believe that a person getting by the system somehow invalidates the entire system?

By that logic because people break the law, we shouldn't have cops, courts, or even laws.

Anonymous said...

If it cannot be done in available time, it cannot be done.

So now you believe that your liberty is dependent upon the government supplying you the TIME to accomplish something?

Please show me where "time" is in part of the Constitution. (I am still waiting for you to show where "flying," or "airline travel," or "travel by any means" is in the Constitution.

Here's how you can win the argument: Explain how limiting how fast you can travel is not a restriction on travel.

Because rate of travel is not the same thing as travel. Rate and travel are two different things.

Argument over.

That's certainly how judges have been treating it.

Factually wrong. You can't yell "fire" in a theater. You cannot harass people on the job. You cannot make threats. You cannot libel or slander people. Want me to keep going?

And of course, everyone is free to exercise their religion, right?

The sound you just heard was your argument that rights are absolute hitting the floor. You just killed your own argument on travel.

It's obviously not the one you're using.

Ummm... try again. It is precisely the one I am using and for the precise reason the framers put it in the Constitution.

That would be the airlines.

Right. The airlines that are carrying the people and cargo. The Commerce Clause applies and has been ruled as applying.

An "emenation of a penumbra" does not give the government the right to IGNORE other parts of the Constitution that they don't like.

Lucky for us, they are not.

D: The 4th Amendment EXPLICITLY states that no searches are to be done without a warrant based on probable cause.

Let me state this for you clearly:

NO.

IT.

DOES.

NOT.

Your reading of the 4th Amendment, like your supposed "understanding" of rights is deeply flawed.

Here's what the Amendment actually says:
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.

Read it again because I am sure you missed it:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

The search of a person for weapons or explosives has been held not to be "unreasonable."

Also notice that contrary to your ranting, there is no "warrant" required for a search if the search is "reasonable."

Did you get whiplash from dodging that point?

What point was that? The fact that you believe that a person getting by the system somehow invalidates the entire system?

By that logic because people break the law, we shouldn't have cops, courts, or even laws.

Use the Name, Luke said...

"(I am still waiting for you to show where "flying," or "airline travel," or "travel by any means" is in the Constitution."

And I am still waiting for you to explain how the freedom to travel is not a part of the fundamental human right known as liberty, as in "life, liberty, and the pursuit of happiness."

"Because rate of travel is not the same thing as travel. Rate and travel are two different things."

Rate of travel is inextricably linked to where a person can travel to.

"Argument over."

… and you lose. You obviously cannot explain how limiting rate of travel is not a RESTRICTION on travel.

"Ummm... try again. It is precisely the one I am using and for the precise reason the framers put it in the Constitution."

Nope.

The short version

A longer version

The firehose version which includes this sumamry:

"In this article I have inquired into the meaning of the legal term “commerce” at the time the Constitution was written, debated, and ratified. I consulted all reported English court cases from the sixteenth, seventeenth, and eighteenth centuries; all American cases before 1790 available on the Westlaw database; all of the leading abridgments and digests of English law; prominent legal treatises; popular legal dictionaries; and pamphlets written by prominent American and British attorneys on the dispute between the colonies and the mother country.

In these sources, the word “commerce” nearly always has an economic meaning. When used economically, the word was bound tightly with the Lex Mercatoria and the sort of activities engaged in by merchants: buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines. I uncovered almost no evidence that there was a predominant legal meaning, or even a common legal meaning, that included all gainful economic activities. I also examined a few instances sometimes cited as illustrations of a broader definition, and found none that clearly reflected such a definition. When used in legal discourse, “commerce” did not include agriculture, manufacturing, mining, malum in se crime, or land use. Nor did it include activities that merely “substantially affected” commerce; on the contrary, the cases include wording explicitly distinguishing such activities from commerce.
"

"Read it again because I am sure you missed it:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

The search of a person for weapons or explosives has been held not to be "unreasonable."
"

I notice that your entire argument rests on two words "unreasonable" and "weapons". If you have no problem with a stranger groping your genitals without a warrant, then you have a damn peculiar definition of "reasonable". (I'll deal with "weapons" at the end.)

And that leads right back to another question you ignored:

"Are you willing to let the police wander through your home anytime they like on the excuse that they're hunting for terrorists?" Are you thrilled with the idea of police stopping you on the street and groping your genitals in the search for weapsons, especially without a warrant? That's the logic you're arguing for!

Use the Name, Luke said...

Since you were so helpful in quoting the full thing, let's look at the parts you ignored (in a typo free copy):

"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."

"Shall not" means that it's not even an option. Can't do it. Period. Full Stop.

"Warrants" means a judges approval after making a case to the judge. The wording also assumes that searches cannot be done without such a warrant.

"but upon probable cause" "But" indicates that this is an exception to "shall not". It's also the sole exception to "shall not." There must be indications that the person they want to search is demonstrating signs of hiding weapons or explosives. Do you really think the 80-year old grandmas and 5 year old kids are giving agents "probable cause"? Seriously?

"supported by Oath or affirmation" The agent of the government must put themselves on the line, making themselves liable for perjury if they're falsifying their claimed "probable cause."

Etc., Etc. Nothing in there about "except when anonymous comes up with a lame excuse to grope a pretty girl, or modes or speed of travel or anything like that.

"What point was that? The fact that you believe that a person getting by the system somehow invalidates the entire system?"

The second key word in your "reasonable searches" argument was "weapons." The "new" system is no better than the "old" system at catching weapons. Therefore, it is not an improvement. All it accomplishes is to violate people, which the old system didn't. It can still be bypassed.

Use the Name, Luke said...

Apparently Blogger is using TSA style searches of blog posts, randomly abusing people.

Yet another perfectly clean post has disappeared into the bit bucket.

I guess words like "lib***y" must be dirty words to Google.

Use the Name, Luke said...

(Retrying, Part 1 of 2)

"(I am still waiting for you to show where "flying," or "airline travel," or "travel by any means" is in the Constitution."

And I am still waiting for you to explain how the freedom to travel is not a part of the fundamental human right known as liberty, as in "life, liberty, and the pursuit of happiness."

"Because rate of travel is not the same thing as travel. Rate and travel are two different things."

Rate of travel is inextricably linked to where a person can travel to.

"Argument over."

… and you lose. You obviously cannot explain how limiting rate of travel is not a RESTRICTION on travel.

Use the Name, Luke said...

(Retrying, Part 2 of 3 (correct from 2 parts))

"Ummm... try again. It is precisely the one I am using and for the precise reason the framers put it in the Constitution."

Nope.

The short version

A longer version

The firehose version which includes this sumamry:

"In this article I have inquired into the meaning of the legal term “commerce” at the time the Constitution was written, debated, and ratified. I consulted all reported English court cases from the sixteenth, seventeenth, and eighteenth centuries; all American cases before 1790 available on the Westlaw database; all of the leading abridgments and digests of English law; prominent legal treatises; popular legal dictionaries; and pamphlets written by prominent American and British attorneys on the dispute between the colonies and the mother country.

In these sources, the word “commerce” nearly always has an economic meaning. When used economically, the word was bound tightly with the Lex Mercatoria and the sort of activities engaged in by merchants: buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines. I uncovered almost no evidence that there was a predominant legal meaning, or even a common legal meaning, that included all gainful economic activities. I also examined a few instances sometimes cited as illustrations of a broader definition, and found none that clearly reflected such a definition. When used in legal discourse, “commerce” did not include agriculture, manufacturing, mining, malum in se crime, or land use. Nor did it include activities that merely “substantially affected” commerce; on the contrary, the cases include wording explicitly distinguishing such activities from commerce.
"

Use the Name, Luke said...

(Retrying, Part 3 of 3)

"Read it again because I am sure you missed it:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

The search of a person for weapons or explosives has been held not to be "unreasonable."
"

I notice that your entire argument rests on two words "unreasonable" and "weapons". If you have no problem with a stranger groping your genitals without a warrant, then you have a damn peculiar definition of "reasonable". (I'll deal with "weapons" at the end.)

And that leads right back to another question you ignored:

"Are you willing to let the police wander through your home anytime they like on the excuse that they're hunting for terrorists?" Are you thrilled with the idea of police stopping you on the street and groping your genitals in the search for weapsons, especially without a warrant? That's the logic you're arguing for!

Use the Name, Luke said...

And part 2 of the retry is gone. @#$@#$@! Blogger!!!

All it included was links to the original Constitutional definitions of "commerce" and a partial quote from one of the sources summarizing the definition.

It's doggone hard to make a point when you can't point to or quote your sources!

Use the Name, Luke said...

(Retry 3, Part 2 of 3)

"Ummm... try again. It is precisely the one I am using and for the precise reason the framers put it in the Constitution."

Nope.

The short version

A longer version

The firehose version which includes this summary:

"In these sources, [every single case found in case law sources in America from prior to 1790] the word “commerce” nearly always has an economic meaning. When used economically, the word was bound tightly with the Lex Mercatoria and the sort of activities engaged in by merchants: buying and selling products made by others (and sometimes land), associated finance and financial instruments, navigation and other carriage, and intercourse across jurisdictional lines. I uncovered almost no evidence that there was a predominant legal meaning, or even a common legal meaning, that included all gainful economic activities. I also examined a few instances sometimes cited as illustrations of a broader definition, and found none that clearly reflected such a definition. When used in legal discourse, “commerce” did not include agriculture, manufacturing, mining, malum in se crime, or land use. Nor did it include activities that merely “substantially affected” commerce; on the contrary, the cases include wording explicitly distinguishing such activities from commerce."

(see page 57 for the full summary)

Use the Name, Luke said...

(Retry 4, Part 2 of 3)

"Ummm... try again. It is precisely the one I am using and for the precise reason the framers put it in the Constitution."

Nope.

The short version

A longer version

The drinking from a firehose version. My guess is that Blogger doesn't like me quoting anything at all from this research paper. So see page 57 for the summary.

Anonymous said...

"Shall not" means that it's not even an option. Can't do it. Period. Full Stop.

"Shall not" does not apply to "reasonable searches. That is what you are missing. Is it that hard for you to see?

The wording also assumes that searches cannot be done without such a warrant.

No it does not. I can give you lots of examples where warrantless searches are conducted.

Etc., Etc. Nothing in there about "except when anonymous comes up with a lame excuse to grope a pretty girl, or modes or speed of travel or anything like that.

It is clear that you do not understand that a search is not illegal when it is reasonable, or automatically illegal when it is conducted done without a warrant. What you fail to acknowledge is that a "reasonable" search is allowed under the Constitution.

The second key word in your "reasonable searches" argument was "weapons." The "new" system is no better than the "old" system at catching weapons.

Nice try, but the cited article doesn't support your claim.

And I am still waiting for you to explain how the freedom to travel is not a part of the fundamental human right known as liberty, as in "life, liberty, and the pursuit of happiness."

I have never said that you are not free to travel. That is another strawman you keep trying to throw out.

Rate of travel is inextricably linked to where a person can travel to.

"Linked to" is not "equal to."

To show the fallacy of your position, assume that you want to hop in your car and drive 110 mph down a street that has a 30 mph speed limit.

According to your thinking, you have the right to travel at an unlimited speed. Furthermore, if you were to have your license revoked for your continued speeding, you seem to think that the "right to travel" would be violated as you can't travel as fast without a car.

Game over.

… and you lose. You obviously cannot explain how limiting rate of travel is not a RESTRICTION on travel.

Because, once again, rate of travel (speed) is not the same as travel. You can whine like a 4 year old and stick your fingers in your ears, but that won't change the fact that travel and speed are not the same thing.

I notice that your entire argument rests on two words "unreasonable" and "weapons".

It is not my argument. It is the Constitution and the SCOTUS opinions.

And that leads right back to another question you ignored:

Actually, I am waiting for you to show "time" as a right in the Constitution.

I am waiting for you to show me "rate of travel" (speed) being the same as "travel" or even "distance traveled."

I am waiting for you to explain how your failed argument on rights being absolute is no longer germane to this discussion.

I am waiting for you to explain how "commerce" is not defined by the founders as "goods or services."

I am waiting for you to explain how a private contract between you and the airlines is somehow unConstitutional.

I am waiting for you to explain how one person violating the law or regulation invalidates the law or regulation.

Anonymous said...

Good grief. Apparently you don't even read your own sources.

Under the "short version" for the definition of "commerce" the stated definition is given as:

"trade and exchange" of goods and transportation for this purpose,

Are you seriously arguing that airlines for not carry goods? They do not transport?

And just so you know, the common day definition of "goods" also included "services" which was why Congress could regulate fess for teamsters on interstate waterways.

Good grief.

Use the Name, Luke said...

Sigh…

I noticed you completely dodged the point about being searched (and groped) without a warrant being "reasonable"… again…

It seems obvious that you disagree with the Appeals court ruling.

I refuse to live in the kind of totalitarian country you're arguing for. But I hope you get to, to the full degree of your arguments.

Anonymous said...

I noticed you completely dodged the point about being searched (and groped) without a warrant being "reasonable"… again…

You can sigh all you want. The Supreme Court has already ruled in an earlier case that the search of passengers for weapons or explosives (which is why I keep using those terms) is reasonable.

Furthermore, you only argued that people could be searched with a warrant. I was the one arguing that a reasonable search was legal and Constitutional.

And by the way, I noticed that you can't respond to whether the government has the ability to limit your speed on the road, and or take away your license and therefore your ability to travel at the rate of speed you want.

You can't or won't answer it because you know it kills your argument that "rate of travel" is a "right."

It seems obvious that you disagree with the Appeals court ruling.

It seems that the SCOTUS disagrees with them.

I refuse to live in the kind of totalitarian country you're arguing for.

That would be a country where the rule of law applies, not "what I feel I deserve" applies?

I am for the rule of law.

You, on the other hand, want to argue for "rights" that do not exist. You are like a little kid that thinks "what you want" is the same thing as a "right."

But I hope you get to, to the full degree of your arguments.

I would love to get the full degree of what I believe in. I am both a Constructionist and an Orginist when it comes to the Constitution.

You, on the other hand, are simple ignorant of the subject matter.

It is always the ignorant ones that cause the problems because as they say, "ignorance is bliss."

Enjoy your ignorance.