So the main argument is that in the time that was written and immediately afterwards we can look to see what they mean by that by how it was implemented. At the time it was understood that the government could and would search goods as they enter the country without warrants to enforce things like tariffs. I think that's a fairly reasonable interpretation of the meaning. Where I think this goes wrong (and maybe deviates from history?) is the conflation of papers and other digital records now with physical goods, historically were people's papers searched as they entered the country (beyond say looking through them to find hidden goods, I mean reading and examining letters and records)?
The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The scale of surveillance now wasn’t even thinkable back then. The ability to encrypt. The bandwidth and latency of communication. The sheer nunber of people, the research into manipulating minds. Does the second ammendment apply to an f35 or a tank? Well it doesn’t really matter, they clearly weren’t in scope when it was written. There were no wiretapping laws in the constitution because there was no wires. unreasonable in 1780 was different to unreasonable today.
The US has famously failed to update its legal framework via the legislative branch, so
It’s upto the judicial branch which seeks to be about interpreting what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today.
>>The problem when you rely on unclear laws that haven’t been modified for 250 years is they haven’t been modified for 250 years.
The Constitution gives you some rights but maybe not this one (to not be searched without warrant at a border). The problem is not The Constitution but the legislative branch that didn't make laws to ban it.
>>what some wealthy farmers from 250 years ago thought, rather than asking what laws make sense today
It's not the job of judges to invent laws or ponder what laws make sense. That would be legislative branch.
> The US has famously failed to update its legal framework via the legislative branch, so It’s upto the judicial branch which seeks to be about interpreting…
Our judicial system is modeled after Judaic precepts (shoftim/shotrim/shomrim) outlined in Deuteronomy 16:18.
There, shoftim refers to judges who interpret and apply the law, requiring deep literacy in the Torah to ensure righteous judgment without favoritism or bribery. Shotrim are the enforcers of the court (sheriffs, etc.).
I don't know where people get the idea that the role of a judge is not to interpret the law. This is literally the only thing SCOTUS does.
It's their job to interpret but not to invent new laws or ponder which laws "make sense".
In particular just because it "makes sense" to extend 4th amendment reading doesn't justify judges just going for it. That would be legislating from the bench.
Every time SCOTUS makes a decision they invent new laws or nullify existing laws. Every case they take is a question about whether certain laws "make sense," and that determination is based entirely on learned, but subjective, personal opinion.
Take for example laws which depended on Roe V. Wade being a Constitutional right no longer existing, and laws created after that right was repealed, because said right didn't make sense to the current Justices (despite being established law for nearly 50 years.) Did the wording of the Constitution change over those intervening years? No. Justices who agreed that Roe was a right died or retired, and were replaced by justices who disagreed, and the Constitution means whatever a majority of Justices say it does. Or the Supreme Court deciding that the 2nd Amendment's definition of "militia" included every American citizen, thus creating a right to personal firearm ownership where none existed before.
Or more accurately, the Constitution means whatever a majority of Justices decide that the hypothetical ghosts of the Founding Fathers, if summoned into a pentagram, would themselves decide. It just happens to be the case that the original intent of the Founding Fathers always correlates to the political bias of the majority. Crazy how that works.
And of course the Supreme Court's power of judicial review itself was never granted by the Constitution. They just made it up because it made sense to them.
Fortunatly there are ways to codify the agreement of the community/nation through the passage of laws and constitutional amendments. Something the US fails to do, as it’s more convenient politically to allow the judges to do it.
But the 100 mile rule? That covers damn near everybody in the US (>200 million, or 66%, give or take) subject to warrantless searches on the whim of whatever the police want?
It's more than that, it's being "close" to a border (you can argue if 100 miles is "close") and not on a whim but reason to believe you recently crossed it.
I don't see many maps that include them in the visuals of border so I'm not sure of the status of that and if the feds are arguing it would count and I think they would if there was an indication they were. I do remember that that was part of the discussion when the policy/rule first got a lot of attention a few years ago but it's not showing up in the visuals now. Maybe there was a clarification or restriction added either by courts or by the executive?
Because you can't exactly sneak on/off of an international airplane. It should be pretty trivial for customs to funnel travelers through a checkpoint where they can search at the time of the actual border crossing.
Likewise we now have the technology to automatically surveil the border 24/7 (maybe modulo tunnels, though I wouldn't be surprised if we could detect those too?), so a 100-mile exception only ever becomes more and more dubious. We could've built the wall and lined it with a surveillance system for less than the cost of this Iran war (never mind all the m̶o̶n̶e̶y̶ ̶p̶r̶i̶n̶t̶i̶n̶g̶ stimulus this decade), shutting up the whole border debate once and for all, and ending justifications for internal surveillance for trafficking.
> Because you can't exactly sneak on/off of an international airplane.
I'm actually pretty curious about this. You can't easily sneak on/off a commercial international airplane, but that's because they've got the gates set up in the airport to funnel you through a specific path that leads to customs. Showing up on an international charter or GA flight seems squishier. http://www.canada.eaachapter.org/FLYING%20TO%20and%20FROM%20... The process seems to be that you schedule an ETA, taxi to a CBP station and wait there until a CBP officer arrives.
On the other side of it, it looks like CANPASS would let you land in Canada even if the CBSA station is closed...
If you fly up from countries south of the US you have a tight list of airports you can clear customs at. Wilmington NC is the odd one on the eastern seaboard. Its about 520 miles north of the nearest one. For flights coming up from the Caribbean headed to New England its a lucrative place to be.
It's still quite hard to sneakily fly into the US in a GA or charter plane and land unexpectedly at an international airport which is why they seem to not count. I say that because places like the SBCC don't include 100 mile bubbles around international airports on their maps of the issue.
On the other hand all aircraft are tracked (we are surely not trying to account for the possibility of a stealth aircraft transporting illicit goods across the border and secretly landing somewhere), and they can decide what they're going to demand from international flights. They might be somewhat lax on runway security, maybe? But it's a pretty constrained problem and easy to keep it localized if they want to tighten it.
Sure, but if you're driving in NM or TX or AZ, what constitutes that reasonable basis for a stop? As long as the car is legal, there can't be any, yet they still do roving patrols. The also stop buses and trains mid-transit (not at stations), which again, hard to conceive of why that would be necessary - if they know an illegal is on a bus/train, sure stop it and get the person, but asking everybody onboard - should be illegal.
Two main cases and the interpretation there-of [0]. The most expansive interpretation of the 100 mile zone that includes all coastal areas hasn't really been tested and AFAIK CBP mostly uses it in a more justifiable area around land borders so far relying on other justifications for more inland operations.
That's a separate issue I don't support outside of situations where they can reasonably prove/show you crossed without alrady going through the search. Luckily, at least so far afaik, it hasn't really been deployed in the maximalist way that turns the whole country into that zone. It's a lot easier to justify near physical land borders like Canada and Mexico than it is if it's being used within 100 miles of very controlled impermiable borders like international airports. Has it been used outside of the land borders?
Well intentioned laws today can be used by illintentioned actors in the future, and mild legal exceptions can become significant ones with a couple additions.
The 100 mile zone is a good example - that 100 mile zone assumes the entirety of the great lakes is international waters, even though Lake Michigan is 100% American Territory and over 300 miles long. So, you could be in a landlocked county of Indiana, and be harassed by the federal government for being in a border zone.
Whats to stop someone from saying, the entire Mississippi river and its tributaries are a border zone? With that you could get 80% of the US population into the border zone.
By enabling some "rule based" decisions that skirt the constitution, you enable a legal mechanism for constitutional rights to be violated without any legislation.
I think they should have to pass a new amendment to fix or clarify when the Constitution seems to say something contradictory. Court shouldn't be able to just decide the 4th Amendment means something weaker than what it plainly says.
