From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: U.S. Bill of Rights today
Organization: University of Colorado, Boulder
Date: Sat, 3 Oct 1992 05:31:23 GMT

In article <1992Oct1.013826.19903@leland.Stanford.EDU> richwing@leland.Stanford.EDU (Rich Wingerter) writes:
>|> It isn't exactly equivilent, since they do not have to search through
>|> and private property to get this information (would you include, for
>|> example, searching through police files, for records of previous arrests
>|> and a "search" under the Fourth Amendment?) 

>I say it is a "search", but not all searches are unconstitutional.  Only
>"unreasonable" ones are.  And you have to do things according to "due process".
>So, a wire tap would be unconstitutional unless you had a reason to search and
>went through due process (obtained a warrant, for example).  I suppose this
>would apply to police records, too.  This is not at variance with current
>procedure.  You have to have an active case to access police records.

Actually, the Supreme Court ruling was that a "search or seizure" must 
involve physically going through or taking your possessions. Wire taps,
according to Olmstead v. United States (277 US 438), do _not_ fall
under the restrictions of the Fourth Amendment, and there is no 
constitutional requirment for a warrent. (I think there is a law,
passed by Congress requiring this, however.)

>|> How do you impartially and objectively define "current meaning"? If you
>|> can not, then you are rejecting the rule of law (and going back to
>|> court ruling by the personal whim of the judge). Since I can't
>|> see how "current meaning" can be so defined, I prefer to stick to the
>|> original, intended meaning of the text. If this is acrhaic and inappropriate,
>|> the it should be amendmend and corrected, not altered based on a 
>|> judge's political biases (which have nothing to do with the consent of
>|> the people.)

>There are a number of ways to define "current meaning".  A good starting place
>would be a current, widely circulated dictionary.

Words and terms pass out of usage, as well as having changing meaning. Try
(for example) to find "letter of marque" in any modern reference (except
legal references that preserve the "original intent" meaning.) Or (to
carry the argument to an extreme) would a "standing army" mean one that
was on its feet at the moment? That is certainly the current meaning
of "standing." Language change is totally independent of the Constitution,
and often applying the current, commonly used meaning yields results that
simply make no sense.

>Beyond that, juries should
>determine "current meaning".
 
Well, juries do have the power of nullification, and can find a person
innocent for any reason what so ever (including thinking the law is 
stupid.) But juries aren't involved in interperting the Constitution
it is judges and justices that do this, and the question is how (outside
of personal whim, which I find unacceptable) they should arrive at
such interpertations.

>I think you could define a procedure that would
>get the current meaning.  

Please, suggest one. Currently, a interpertation based on "current meaning"
or "modern context" follows _no_ definite procedure and simply mirrors
the prejudices and biases of the interperter.

>I'm just opposed to judges guessing what the
>"original intent" was.  This doesn't seem any safer than having them conjure up
>meanings based on what they think should be in the constitution.

Why do you call this a guess? There is substantial historical evidence
to work from. At worst, it is an educated guess (which is still much
better than a whim.) But certainly no process of determining the
original and intended menaing could remove all bais. However, it does
limit this bias: An interpertater would have to come up with plausable,
historical evidence. That narrows the range of possible interpertations,
although there is still some space for discression, judgement and bias.

                                                  Frank Crary
                                                  CU Boulder

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