In Stanley Brubaker's exculpation[1] of the NSA's warrantless eavesdropping in theWeekly Standard, one can see the mental somersaults neo-conservatives will go through to defend lawlessness. Brubaker's commentary is significant, because it is the quintessential neo-conservative interpretation of the Fourth Amendment. If it wasn't the Constitution being menaced, the argument would be amusing.
His first ad nauseam excuse for warrantless searches is that contra legem searches aren't unprecedented. I should like to make clear that neither is rape unprecedented - does this make it okay? Pursuant to Brubaker's logic, everything the government does is ipso facto Constitutional.
Brubaker's next error is letting grammatical law obfuscate his vision of Constitutional law. By the way, statutory law has totally separate paragraphs in outline form, with each paragraph being equally-important and relating to the same main point. I wonder if Brubaker would dare use his analysis to nullify whole paragraphs of the PATRIOT Act.
The Fourth Amendment:
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.
That we are dealing with two independent clauses is something I do not dispute. But, what Brubaker says is that an "originalist" interpretation would be "first clause dominant." Translated: he sees only the proscription on "unreasonable searches." Ignoring the second clause, he then concocts his own Fourth Amendment with the help of that great Yale scholar, Akhil Amar. John Jay, eat your heart out.
Brubaker writes, "The first clause states the general rule: All searches must be 'reasonable.'"
Maybe I have bad eyes, but I'm not seeing anything about a warrantless search being okay, as long as it is "reasonable." It seems self-evident to me that the second clause explains what makes a search reasonable. Otherwise, pray tell me, what, objectively, makes a search reasonable or unreasonable? Although Brubaker doesn't explicitly answer this, I can only infer the arbitrary discretion of government agents.
According to Brubaker, "The second clause provides an important specification of the first: If a warrant does issue, it is per se unreasonable unless supported by probable cause, etc."
Every time I see Brubaker's hermeneutics my surprise quotient drops a few points. If he is saying a search is only unreasonable with a warrant, but without probable cause, then why get a warrant? Otherwise, since he says that a "reasonable" search needs no warrant, the only room left for a warrant would be for an unreasonable search.
[1] -
www.NoAnthraxVaccine.net
Mark served for four years on active duty in the Marine Corps infantry, and was a candidate for a municipal office in 2002. Mark has helped raise awareness of military and veterans' issues, by establishing No Anthrax Vaccine. His commentary has been carried by such sites as AntiWar.com. He spends much of his free time reading the great minds of the Austrian school of economics, such as Murray Rothbard, Henry Hazlitt, Ludwig von Mises, et al.
