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"The Law of the Lord is perfect, reviving the soul; the testimony of the Lord is sure, making wise the simple; the precepts of the Lord are right, rejoicing the heart; the commandment of the Lord is pure, enlightening the eyes." -- Psalm 19:7-8 (ESV) --

Saturday, January 29, 2005



I was reading the Orange County Register a yesterday about a recent U.S. Supreme Court decision. Apparantly, the Court said that it was not unconstitutional for the police to use a drug sniffing dog to search for drugs during a routine traffic stop. The Register lamnted that this was contrary to the Fourth Ammendment, which prohibits search and seizures without a warrant or withour probable cause.

On the one hand, this Register does appear to be correct. There was nothing in the actions of the driver that would give the impression that he had drugs in the car. Furthermore, the officer could also freeze the scene and request a telephonic warrant if he had a suspicion. However, the suspicion came only after the police dog had already sniffed the car and alerted the officer to the possible presence of drugs. However, there appeared to be no reason for the dog to sniff the car (and remember, legally, a police dog is a sworn officer), and hence, this would appear to be an illegal search.

However, regardless of the Supreme Court's ruling, the Register's lament makes no sense. The libertarian philosophy of the editorial staff has always advocated an extremely limited form of government, much smaller than the Biblical model, and slightly more than anarchy. Of course, some libertarians are anarchists, but this is not a position that the Register has held. Hence, on the one hand they are correct. This is a violation of the Fourth Ammendmet. On the other hand, they are fundamentally mistaken. They are relying on a rule that the government made up to justify their position.

As I said many times, the Constitution, and especially the Bill of Rights, was never meant to be applied to the States unless it was explicitly spelled out in the Constitution. Again, even granting the ratification of the Fourteenth Amendment, there is nothing in that Ammendment that says that the Bill of Rights must apply to the States. As I have said time and time again, this does not make any sense since the State constitutions have the same protections, and some States go beyond the federal constitution in protections. The only reason that the Fourteenth Ammendment applies to the States is because the Federal Government (i.e. the Supreme Court) says so. Hence, if the Supreme Court can arbitrarily grant things without Constitutional authority, then it can just as easily take things away.

When the SUpreme Court applies the Bill of Rights to the States without constitutional authority, then the Court ignores the words of the very document it tries to uphold (i.e. the Tenth Ammendment). Hence, it can ignore the words of the Fourth Ammendment when it plainly dictates one correct decision (of course, assuming the Fourth were legally applied to the States). WHat one hand gives, the other can take away.

The warning tha THomas Jefferson gave still holds true today. In the Kentucky Resolutions, he said, "the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress." Isn't that exactly what has happened here? It is the Court's discretion (and remember, the Supreme Court is not independent of the federal government, it is part of the federal government) that dictated this case 1. in clear violation of the Fourth Ammendment if it were legally applied, and 2. in arbitrarily stating a warantless search without probable cause is legal in one case, but not in others.

When the ultimate authority of a document becomes an institution that the document creates (such as the Bible and the Roman Catholic CHurch?...hmmm), then there are no objective standards. It comes down to the discretion of the men and women who have their own aspirations. Hence, why Justice Thurgood Marshall could lament in Payne v. Tennessee that an earlier case was overruled (Maryland v. Booth) not because of a change in constitutional jurisprudence, or even because of a change in the facts of the two cases. It was overruled solely because of composition of the Court has changed. By the way, he was not innocent in thi, either, but his point is clear. After all, is not this what Christians are hoping for if and when President Bush gets to fill a SUpreme Court position? The want Roe v. Wade overruled, and as bad as tha decision was both ethically and legally and it deserved to be nullified, the principles that political conservatives hold seem to be just as hollow as the liberals.

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