Re: Puppet Holder goes for the Texas jugular.
posted at 7/25/2013 2:09 PM EDT
In response to StalkingButler's comment:
WDYWN, do we really need an amendment to help us decide whether or not a infrared scan of a house constitutes an illegal search? It seems pretty clear to me that any search of your home, regardless of the technology used, would require a search warrant. An infrared scan of a home for no particular reason would seem to me to be the very definition of unreasonable.
The bolded is my point: We can pick decisions where it would seem silly to require an amendment....certainly we can consider what a search was at the time of the founding and say whether an infared scan is a search. The constitution thus evolves. And this, at least, is what I mean by a "living constitution".
My next point was: Ok, now that this much is agreed on, where is it that you're drawing the line? What are these "living constitution" decisions that you think should require an amendment .....
...and what sort of guide could the Court be given to follow that?
Don't get me wrong. I realize there are people without power who say "who cares about the constitution." I believe someone - perhaps it was even you - who posted a slate article where some blogger made that argument. Ignore the constitution and do whatever because it's 300 years old.
I obviously disagree with those people, and note: Fortunately, none of them is anywhere near, or has the slightest chance of getting near, the Court(s).
However, I think it's silly to scoff at the concept of a living, changing, constitution. It necessarily changes as time goes on. It has to, otherwise things would break.
And, PS, the court only half agreed with you. They said an infared scan is not a search if it only reveals things visible from the outside to a person standing in a place they are allowed to be.
Because a person standing on the street in winter could see snow melting on portions of the scanned house where the pot lamps heated up the outside of the house, the fact that it revealed the presence of pot plants within the garage did not make the scan a search. It would only be a search if it revealed something you could not have detected from the outside.