From: Charles B. "Brad" Frye <[b f rye] at [delphi.com]>
Newsgroups: talk.politics.misc
Subject: Re: The brazen judicial activism in Dred Scott and Roe v. Wade
Date: Tue, 18 Apr 95 01:34:01 -0500

Michael Loomis <[ml 3 e] at [andrew.cmu.edu]> writes:
>intents to "the original intent".  The "original intent" doctrine is
>also absurd in that it would require us to re-ratify the Bill of Rights
>every twenty or thirty years so that the Constitution would mean what we
>interpret it to mean.  It is a silly waste of time for us to amend again
>the Constitution with the exact text of the First Amendment just so we
 
 
Sorry to truncate the quote, but, I just wanted to add a note of personal
experience re: "original intent."   When I was just starting out as a
young lawyer (who didn't know any better than to get involved in criminal
law), I tried those "original intent" arguments in search and seizure
cases.  (Hey, what did I know?  I read the Constitution's first ten
amendments, I thought "no warrantless searches," "probable cause," and
that stuff actually meant something.)  But, the terrible-evil-bad liberal
Supreme Court had "tied the police's hands" by doing away with the idea
of "probable cause" and requiring warrants for searches and seizures and
trivial, mundane stuff like that.  Cops *could* kick down doors "in hot
pursuit" (I never found that one in the ol' Bill of Rights), police could
stop on "reasonable suspicion" (I wonder what *that* meant in 1775-1786?),
law enforcement could perform a "pat down search" to protect themselves
and the alleged wrongdoer (and admit the drugs they invariably found while
looking for machines guns in tennis shoes) and no one ever told me about
the Redcoats' doing "pat downs," and, after a couple of years, I was
thouroughly confused about this "original intent" stuff.
 
Now, of course, the DEA can detain citizens in bus stations and airports
if they fit "drug courier profiles" (General Howe would've *loved* that
one, doncha know?  -- "Say, old chap, a moment, please?  You just sort
of have that, oh, 'rebel' look about you.  Would you step this way, please,
until we can establish that you have none of those nasty Tom Paine brochures
stuffed down your underpants?")  The Border Patrol can stop you just because
you look Hispanic.  The local boys can "detain" you if they "reasonably
believe" that you "fit" certain "characteristics" of one who "may" have
recently engaged in "criminal activity," especially if you "fit" one
of their "expert criteria" indicating "gang" involvement.
 
This "original intent" stuff is horse-you-know-what.  If Judge Bork or
Justice Rehnquist *really* believed in "original intent," they would
go back to the original text of the Bill of Rights and enforce the
plain language:  no warrantless searches, no warrant without probable
cause.  Not "reasonable suspicion," not "good faith belief," actual, honest
to goodness, fact-based, old-fashioned, "probable cause," with a warrant
that "particularly describes" the person or items to be seized.
 
Perhaps then, and only then, would American citizens be "secure" in their
houses, persons, and papers.
 
Yeah, some crooks would take advantage of our rights.  Yeah, it would be
harder to catch drug dealers.  But, hey, living in a free society is a
bitch, you know?
 
Regards,
Brad