Are You Living in a Fourth Amendment Exclusion Zone?
storyleak.com
storyleak.com
Here's the HN discussion from two years ago: http://news.ycombinator.com/item?id=1961071
http://www.youtube.com/watch?v=u4Ku17CqdZg
Predictably it isn't long before Godwin's Law is invoked.
While some were obviously successful through simple civil disobedience, I wonder how others turned out. The guy that apparently ignored an order to pull into secondary may have had a rougher go at it. The California agricultural inspections have stood up to challenge [1] and I sympathize with their purpose more so than a 'zone' including most of the population of the country.
[1] http://law.justia.com/cases/california/calapp3d/104/505.html
The purpose of Godwin's Law is not to gainsay all comparisons to Hitler and the Nazis, but rather to gainsay inappropriate comparisons. I would argue that a US federal law enforcement checkpoint that clearly, unambiguously and persistently violates the US Bill of Rights is a reasonable place to start thinking about other governments that violate human rights. The comparison to Nazi Germany may by hyperbolic but it's not beyond the pale.
Are you? It's remarkably easy to say that getting fired from your job to make a point is but a "small sacrifice" when it's not your job, your livelihood, your family and/or home on the line.
If it's such a small sacrifice, perhaps some people could game the system - apply for a job with DHS (they're hiring! https://dhs.usajobs.gov/JobSearch/Search/GetResults?Keyword=...), and do this to make a point. In fact, I volunteer you for this noble, but small, sacrifice, that you're so willing to suggest others do.
If you want to confirm acop id you know where to call/go... With a dhs employee, you don't.
The system has always been set up this way. There is a reason that the Founders were wealthy merchants, lawyers, and plantation owners, rather than workaday stiffs dependent on a paycheck.
I think most of the founders thought the issue of slavery would die out on its own in the next couple generations, but unfortunately, the cotton gin came along 30 or so years later and made it profitable once again. I do wonder if it had been known that such an invention would come about a short time later if that would have changed the way the constitution was written.
*Many were also flat out against a constitution because they felt it gave the federal government too much power.
[1] http://en.wikipedia.org/wiki/John_Adams#Constitutional_ideas
Has there been any actual new reporting since then?
I really think this just needs to move up the chain. I can't imagine higher level courts weakening the fourth amendment.
This is neither the law nor the actual practice in the US. It is just something crazy that DHS once said. If they ever actually searched someone 100 miles away from the border, that person could sue and there is no reason to believe that the verdict would be different from Almeida-Sanchez v. United States.
There are checkpoints a hundred miles from the border in many states and several videos of people suffering horrible results when they refuse searches at these checkpoints.
The TSA also routinely performs searches far from the border with their VIPR team. (because someone might drive a train into a building? http://en.wikipedia.org/wiki/Visible_Intermodal_Prevention_a... )
Here's a story from January 2013 http://abclocal.go.com/kgo/story?section=news/local/east_bay...
The most alarming part is how the "news" is now seemingly okay with all this.
Not true; this is absolutely the actual practice in the US. Look what you have to do if you want to avoid being searched in one of these rights-exclusion zones:
But on the other hand I don't see a way for this to actually appreciably positively affect U.S. border security without stripping away most of what it means to be an American at all.
Even random checks at a high enough interval to give a good chance at making it too risky to attempt a terrorist plot would be tremendously impacting on day-to-day life. The effect of the DHS would be much more severe than the effect of any supposed terrorists themselves!
Better instead to use any such resources on things more beneficial to the common welfare, and to get rid of the extraneous legal authority.
That map is fucking ridiculous. There is no way they would search in the middle of a rural area without access from waterway, etc., and yet that is what much of this map highlights. Even if it is "factually correct", it isn't realistic, even for the most nutcase DHS employee. The everglades? Give me a fucking break.
http://cdn.storyleak.com/wp-content/uploads/2013/02/fourth-a...
This is a sideshow to real privacy problems and a waste of my time and yours. The ACLU should be focused on the fact that our communications are being monitored, because that is something that is much more worrisome.
The America the constitution talks about never existed. Most especially if you were black or female, but even if you were white and male if you were poor, or a union organizer, or a communist, or an anarchist, or a protester, or a striker, or a member of an unusual religion. In fact basically it was a pack of lies for anyone not already in the mainstream elite. And if you are in the mainstream elite in 2013, rest assured, this one does not apply to you either.
In fact, the virtue of the constitution is that as a lie, it has inspired people to strive to demand it become true. And slowly by piecemeal, always hard fought for, always opposed, the golden age of the past that never existed is being constructed in the present.
Also compare the fate of the native Americans who resisted.
The beauty of the Constitution was that it limited the powers of the Federal Government, allowing people to make more decisions for themselves at the individual, local, and state levels.
One needs only to look at the legislative and judicial history to see that the Tenth Amendment has been largely nullified in favor of increasing Federal power.
One needs only to look at the budget of the Federal government which is up around 24% of the GDP to realize that it is rather unconstrained by the narrow scope of the Constitution.
The Founding Fathers were deeply paranoid of an overbearing government and an very powerful political class. That's why the Constitution was written the way it was. It was a good idea, but the best set of rules in the world can't constrain people who refuse to live by them.
If by "some segments" you 95% of the population who isn't a white, male, landowner.
> The Founding Fathers were deeply paranoid of an overbearing government and an very powerful political class.
This is middle school civics drivel. The dominant force in the Constitutional process were the federalists, who wanted a very strong central government. The federal government we have today is based on a reasonable reading of the Commerce Clause, which was always intended to be a very broad power and was a key piece of what the federalists wanted out of the new constitution. All that's happened since then is that we've gone from being largely self-sufficient farmers to people who even argue with each other over channels of interstate commerce.
Nice... so now text book writers aren't quite liberal enough in their slant of America's history. Glad you know better than the academics who've studied the subject.
The dominant force in the Constitutional process were the federalists, who wanted a very strong central government.
I'll grant you that the Federalists had the momentum when the Constitution was written, but why do you think the Articles of Confederation were implemented in the first place? It's because the Founding Fathers erred on the side of an extremely weak Federal government. It was so weak that it couldn't really function, so the Federalists gained the upper hand in drafting the next version.
Even then, it wasn't intended for the Federal government to completely overrule the states using the Commerce Clause. The Commerce Clause has been totally perverted to mean pretty much anything that Congress has wanted it to mean. It's a damned shame.
It's not a liberal versus conservative distinction. It's a "history" versus "historical revisionism" distinction.
> but why do you think the Articles of Confederation were implemented in the first place?
Because at the time of the founding, the political power lay with the states who had no desire to give it up.
> Even then, it wasn't intended for the Federal government to completely overrule the states using the Commerce Clause. The Commerce Clause has been totally perverted to mean pretty much anything that Congress has wanted it to mean.
The Commerce clause means very close to what it meant almost 200 years ago when it was first interpreted in Gibbons v. Ogden, 22 U.S. 1 (1824).
"This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said, that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, Congress is authorized 'to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it." 187-188.
"The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse." 189-190.
"It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States." 196-197.
What the federalists wanted was for the federal government to have broad powers to regulate commercial intercourse (Justice Marshall was a federalist). What happened from 1824 to 2013 is that nearly everything became the subject of an inter-state commercial transaction. Your average American in 1824 could go weeks without engaging in interstate commercial transactions. Today, you do it every time you check e-mail on your smartphone or buy a snickers from the vending machine with a credit card.
The interpretation of the Commerce Clause today is not "perverted." It means more or less what it always has--accounting for Justice Marshall's opinion in Gibbons cementing the Federalist rather than anti-Federalist interpretation of the Clause. A staunch Federalist from 1820 would not be surprised by say Rehnquist-era or Roberts-era interpretations of the Commerce Clause. What's changed is that the nature of society has changed dramatically such that the broad power delegated to Congress in the Commerce Clause, read faithfully, encompasses far more human activity than it did at the time of the founding.
The earliest explicit justification of that trend in interpretation (that I'm aware of) is Wickard v. Filburn, in 1942[1].
The prevailing interpretation today applies a sort of "butterfly effect" perspective on activity, such that any human activity (even flapping one's arms) will inevitably at some point affect interstate commerce, and can therefore be regulated by the federal government.
So, where your average American in 1824 could go weeks without engaging in interstate commerce, more modern interpretations suggest that every American, even if living a lifestyle otherwise identical to that of their 1824 predecessor, engages in interstate commerce with practically every action.
This interpretation makes the 10th amendment pointless, which is why I consider it "perverse".
Congress may regulate (1) use of the channels of interstate commerce, (2) the "instrumentalities" used in interstate commerce, and (3) activities that substantially affect interstate commerce. (lifting Wikipedia's paraphrasing)
That's really very similar to the scope given in Gibbons.
Remember, the individual mandate was struck down on Commerce Clause grounds, and only upheld on taxation authority grounds. That's where the Commerce Clause stands today after Rehnquist and Roberts.
> So, where your average American in 1824 could go weeks without engaging in interstate commerce, more modern interpretations suggest that every American, even if living a lifestyle otherwise identical to that of their 1824 predecessor, engages in interstate commerce with practically every action.
This isn't actually true. If you're a subsistance farmer using 1824 technology and consuming all the food you produce, Wickard aside there isn't much that the federal government asserts the right to regulate you over. The major issues to the contrary are things that were always latent in the Commerce Clause and exposed by technology. E.g. if you use modern fertilizer, which leaches off your farm into the waterways, then you can be federally regulated over that, but such regulation is consistent with the reasoning in Gibbons itself.
Also, the 10th amendment is a nullity on its face. It basically boils down to "the federal government doesn't have any power it doesn't have." If a federal action falls within a reasonable reading of the Commerce Power, then the 10th amendment isn't implicated.
Do you really think the current size of the federal government is reasonable? It is getting out of control.
I think the real mistake here is on the part of the left though. Social spending programs as a general rule belong at the state level. Making so many of them federal causes them to become the driving force in federal elections, which provides cover for corruption and waste in legitimately federal issues like immigration and the defense budget. So they spend their political capital keeping the Department of Education and the NIH open for business at the federal level while we spend billions of dollars that New York and California and Massachusetts could have used for public education and publicly funded research to instead develop a fighter jet that doesn't fly and let stand massive failures like the TSA, to say nothing of the War in Iraq. Is it really worth all that just so the bureaucracy printing the checks is run by the feds instead of the states?
I think federalism is a failed experiment and I have no interest in re-litigating the Civil War. The 13/14/15th as a practical matter abrogated the idea of states as anything other than lesser sovereigns to the federal government. Federalism died with the Confederacy--let it rest in peace...
As for the size of the federal government, the number of federal workers has been more or less static for the last 40+ years even though the population has grown dramatically. The federal budget has grown, but most of it has been in the form of transfer payments--money that goes straight from one private citizen to the other. It's not clear the size and scope of the federal government is substantially different than it ought to be.
> Social spending programs as a general rule belong at the state level.
What makes you think that having 50 different poorly run versions of any given social program is a better idea than having 1 somewhat less poorly run version of any given program?
The federal government underwent a massive expansion over the course of the 20th century. You're limiting yourself to the period following its expansion and then claiming it hasn't expanded very much since then.
>The federal budget has grown, but most of it has been in the form of transfer payments--money that goes straight from one private citizen to the other.
Privatizing the inefficiency doesn't make it go away. Taking money from middle class taxpayers and giving it to Solyndra was not a good thing. And increasing the amount of money on the table for redistribution very much exacerbates the problem of distributive issues crowding out other important federal concerns for voter attention.
>What makes you think that having 50 different poorly run versions of any given social program is a better idea than having 1 somewhat less poorly run version of any given program?
Local programs have greater accountability and can be better tailored to the different needs of local populations. If a specific program isn't meeting the particular needs of a given state, that state's legislature is more likely to have the right incentives to fix it than Washington. If a state's legislature is wasting money on boondoggles, the cost of such things is born by a more concentrated set of taxpayers who are consequently more likely to demand accountability and shut down wasteful programs. And reducing federal spending would reduce the amount of unjustified subsidies that flow from high population states to low population states solely as a result of the low population states having the same number of federal senators.
Also, this:
"It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." -Louis Brandeis
I'm using the period since 1960-1970 because the character of the economy hasn't changed very much since then. Yes, the federal government was a lot smaller in say 1900, but at that time 40% of the population lived on a farm, versus almost nobody today. The appropriate size and scope of government for an agrarian society is not the same as for a burgeoning industrial society is not the same as for a mature service-oriented society.
> Privatizing the inefficiency doesn't make it go away.
Complaining that the government is big and that the government has inefficient policies are two separate complaints. The fact is that once you take out parts of the government budget that are simply taking in checks from one group of people and getting them to another group of people, government expenditures have actually been shrinking relative to GDP. Now, income redistribution may be a problem, but I'd argue it's a separate problem to "government is too big."
> Local programs have greater accountability and can be better tailored to the different needs of local populations.
This is a theoretical trope that is almost wholly not bourne out by actual facts. In practice what happens is that there is far less attention paid to local politics, which means that local government programs can get extremely dysfunctional before anybody starts paying attention. There is pretty much not a single state government that's as well-run as the federal government (except e.g. VA and MD, but its easy to be well-run when you're massively subsidized by the defense budget). A lot of that is due to the fact that state governments get far less scrutiny.
> the cost of such things is born by a more concentrated set of taxpayers who are consequently more likely to demand accountability and shut down wasteful programs
C.f. San Francisco.
> "It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." -Louis Brandeis
Yet the history of federalism has been that the only experiments states are interested in running are how to suppress minority groups and women.
Huh? My family balances its budget. My Homeowners' Association balances its budget. My city balances its budget. My county? Well, it doesn't balance its budget well, but it's part of an urban area run by liberals... go figure. My state balances its budget. My Federal government does NOT balance its budget or even make an attempt to. What fantasy cherry picked stats would you use to show how the Federal government is run better than the states.
For most things, local control is better than centralized control. We've swung way too far in the centralized direction as a result of the Civil War. Rather than having 50 states that provide different solutions and environments, we mostly have to suffer under the failures of the Federal government.
Additionally, the point is that SOME STATES DO MANAGE AFFAIRS BETTER THAN THE FEDERAL GOVERNMENT. If I agree with how those states manage, then I can move to them. Unless I want to relinquish my citizenship in the USA, I am trapped with one Federal government that sucks.
http://www.washingtontimes.com/news/2011/jul/29/republican-s...
Virginia, Louisiana, Missouri, North Carolina, Minnesota?
Subsidies are what they are. Crappy accounting practices at the State and Federal level are what they are.
The fact that states makes an effort to balance their budget says something about the greater accountability at the more local levels. Our Federal representatives don't even appear to have a modicum of shame over the fact that they don't even budget anymore. They just keep raising the debt ceiling, passing continuing resolutions, and printing money. It's astonishing that there are people who defend a centralized system that is completely unaccountable and destroying the country.
Virginia, Louisiana, and Missouri receive more federal dollars than they pay in taxes. For Missouri, the net amount is 2.8% of GDP, Louisiana gets 4.4% of GDP, and Virginia gets a staggering 11.2% of GDP.
North Carolina and Minnesota look pretty good, but they were up there with New York and Illinois in terms of budget deficits a couple of years ago: http://www.wral.com/news/local/politics/story/8049206/
It's about the discipline of balancing a budget, not the exact amount of money you get to balance.
Because balancing a budget is easier when you have more money?
You don't see the irony in this context of asking for a state that pays more in federal taxes than it receives in federal dollars but still manages to have good finances? The reason New York (87%) and Illinois (111%) have such difficulties to begin with is that the federal government extracts so much more from their tax base than they get back in federal money. Minnesota (199%!) pays a higher percentage than Virginia (-145%) receives.
( Numbers are 1990-2009 federal taxes minus spending as percent of state GDP, from here: http://www.economist.com/blogs/dailychart/2011/08/americas-f... )
That may be true; it still doesn't tell you what the appropriate size is for each of those. Moreover, I'm talking about the size of the federal government, not the size of all government. I want government to make housing and education more affordable and provide for the care of the elderly etc., I just want it to happen at the state rather than the national level.
>Complaining that the government is big and that the government has inefficient policies are two separate complaints.
One is related to the other. The bigger you make something, the more surface area you create for corruption and waste. Look at the F-35 -- the estimated lifetime cost of that program is a trillion dollars. And most Americans don't even know it exists, because the national attention is focused on medicare and how to raise the tax revenue necessary to continue funding all of the programs that need not exist at the federal level.
>The fact is that once you take out parts of the government budget that are simply taking in checks from one group of people and getting them to another group of people, government expenditures have actually been shrinking relative to GDP.
The parts of the budget "that are simply taking checks from one group of people and getting them to another group of people" are the programs that I'm arguing shouldn't exist at the federal level.
>In practice what happens is that there is far less attention paid to local politics, which means that local government programs can get extremely dysfunctional before anybody starts paying attention.
I can see how this would be true in 1985 when a citizen's connection to the state capitol was almost entirely made up of the local newspaper's capitol reporter writing a weekly column on zoning regulations that almost nobody reads, but that was before the internet.
And a big part of the reason people don't pay attention to local politics today is that the federal government is doing the things the states should be doing. People aren't going to pay attention to things they don't care about. They care a lot about spending programs and taxes.
>C.f. San Francisco.
I'm not going to argue that there has never been an example of state-level waste or a mismanaged state or local government. The point is that when there is a mistake, the scope is limited to that area and we get a baseline in what the other states are doing to compare it against to determine how well it's working.
>Yet the history of federalism has been that the only experiments states are interested in running are how to suppress minority groups and women.
I'm not talking about repealing the Civil Rights Act. Things like that don't cost a lot of money.
And your statement is clearly false. California has been running a profoundly different public university system than, say, Texas. The services offered by New York are better tuned to the needs of citizens in a thriving metropolis. The services offered by Wyoming are better tuned to the needs of citizens living in rural areas. Why should we be so keen to crush local diversity and choice in spending programs?
Federal laws are terrible at things like that. Here's one important example: Most federal programs and taxes don't account for regional cost of living. So someone living in San Francisco making $70,000/year is paying a much higher federal tax rate, and is eligible for a much smaller subset of need-based federal programs, than someone living just outside Kansas City doing the same job who makes half as much money but also pays half as much for products and services and thereby achieves the same standard of living.
I love how you twisted the previous poster's point of "size of the federal government" into number of employees. Them's weasel words right there. We all know that the important factor of size is the budget, which has grown by any measure you care to discuss.
Probably the best measure is in terms of a percentage of the GDP. We're up over 24% of GDP now vs historical 18% or so, no time to Google, but I think that's pretty close.
Twisting people's arguments is a sad way to have a discussion about important topics.
It's not clear that, in economic terms, the size of the budget is the most important factor. Transfer payments, which go directly back into the private economy, do not have the same effect as other kinds of government expenditures. This is especially true for transfer payments like social security. Consider: young people would be taking care of old people even without social security. Social Security, in a sense, just brings those transfer payments onto the federal ledger. Is $10 billion of social security transfer payments, most of which would have happened anyway, the same in terms of economic impact as spending $10 billion to hire TSA employees or spending $10 billion to make bombs?
Every time you remove individual choice from making decisions about how to spend money and in its place substitute aggregate government spending, the efficiency of the system plummets. That's because the higher you move up the hierarchy, the less decision makers care about spending other peoples' money. It's the reason why markets tend to be efficient and government programs tend to be wasteful.
So you can't just say, "since citizens would spend money on x, we might as well create a government program that spends money on x".
The size of the budget is what's important. A government's ability to spend money is a government's power. Far from being a wash, transfer payments are government exercising its control.
For the last 40 years (leaving aside the spike caused by the response to the repression), federal expenditures as a percentage of GDP have been around 20% of GDP: http://stats.areppim.com/stats/stats_usxoutlaysxgdp.htm. During that period, discretionary spending as a percentage of GDP has fallen. That's not consistent with a narrative that the government has kept growing this whole time.
It does more than that. It makes the payments unconditional and divorced from family. If someone's children are paying for their retirement, they're more likely to stay in close contact because of the continuing dependency. The grandparents are more likely to live in closer proximity to their children and grandchildren and impart their wisdom rather than moving to Florida to play shuffleboard on cruise ships. Parents who know they'll have to depend on their children in their retirement have a greater incentive to care about the success of their progeny, etc.
And that's assuming the payments go to the same people as they would under a state program or with voluntary individual action. Social security is very poorly implemented: The richest taxpayers pay the lowest percentage of their salaries in social security tax and then receive the highest benefits. Millionaires living in mansions receive larger social security checks than retired Walmart greeters living in hovels.
Moving things to the state level gives us an opportunity to rethink all this. Stop sending Warren Buffet a social security check and instead have him pay to subsidize living expenses for the retired working poor based on need. Let middle class families with successful middle class children handle their own affairs internally rather than having the government use force to take from the son to give to the father.
And let me ask this: If transfer payments did nothing and had no economic effect, what would be the argument for keeping them? If they have no effect then keeping them is just wasting resources on government bureaucracy to redistribute the money pursuant to the broken window fallacy.
Another way to look at it is: consider two governments, both spend 30% of GDP. The first spends 25% on bureaucracy and the military, and 5% on transfer payments, while the second spends 10% of bureaucracy and the military, and 15% of transfer payments. Which government probably has a lower economic impact? Which government probably has more "fat" to trim?
I made a statement in support of Federalism as a basis for our founding. You said:
This is middle school civics drivel
Then later you said:
I think federalism is a failed experiment and I have no interest in re-litigating the Civil War.
So apparently, Federalism was a core part of the "experiment" of or Founding and not "middle school civics drivel".
> Federalism was a core part of the "experiment"
I didn't say Federalism wasn't a part of the experiment of the Founding. I'm addressing your historical revisionism about why the Federal system exists. It has more to do with political expediency in a climate where the states held all the cards than any deeply held belief that the Federal government should be as strong as possible.
Remember, the Framers didn't have a mandate to create a new Constitution, because the state legislatures were worried what that would do to their power. They created the Constitution they thought they could get away with.
Actually, the OP had it right the first time. We've made progress on some fronts even as the government has been growing and trying to circumvent others. Women and blacks can now vote, something which was not true in the start of this great experiment.
You seem to forget (or never knew) that there is a constant tension between a government and it's citizens: the government wants more power, and the people usually want more freedom. Although if you look at the majority today, they'd rather have big brother take care of them. caveat emptor
Then again, as a UK citizen, I thought the fourth amendment was not letting soldiers billet in your house.
From:http://www.aclu.org/national-security_technology-and-liberty...
I wouldn't be surprised if you still have quite a few rights down the line but only inside your home and a few decades after that only in the bathroom.