Dan Connelly said:
Davide Tosi said:The most insightful thing about the interview is that it shows clearly that
France is not a democratic western country. It is exactly like the old
soviet union or east germany.
Suspects, even foreign citizens, are not granted any right. In a democratic
country a lawyer should have been present to all those search and
inquiries.
It's a shame that such a relic of the past is part of the European Union
and the NATO.
Well, clearly a protection against unauthorized search & seizure is not
a fundamental requirement of Democracy (or Republic), because until the drafting of
the 4th Amendment ( http://www.house.gov/Constitution/Amend.html ), it
wasn't guaranteed in the US.
Constitution: September 17, 1787
BoR 1-10: December 15, 1791
The Consitution would not have been ratified without a promise of a Bill
of Rights (the first ten). The Anti-Federalists had ulterior motives in
insisting that a Bill of Rights be included -- the Federalists were
originally against it. But as matters turned out, the Federalists ended
up beating the Anti-Federalists over the head with the object of their
own insistance. So much for ulterior motives. "Anything you say can
and will be used against you."
Not having enumerated rights ended up being unconvincing. From Levy:
"Their arguments justifying the omission of a bill of rights were
impolitic and unconvincing."
Quoted message said:Second, even this "right" is subject to interpretation. Consider, for
example, the "Patriot Act" (sic).
The anti-dope or "Drug War" laws (Nixon) were what intially weakened the
fourth. The book _Smoke and Mirrors_ has some discussion regarding the
legal arguments which weakened the fourth. I read it a long time ago
and don't remember the details. There are probably better (real) legal
books on the topic than that one, but it is all I've read on the matter.
Quoted message said:Additionally, certain optional activities
expose one to search. Flying a commercial airline is just one example.
So participating in a professional sport may be considered such an activity.
This is entirely different. This is entering into private contracts
with stated conditions included in the terms of agreement. You can opt
out. You don't have to fly. You don't have to play pro sports.
Quoted message said:In any case, in G.W.'s America, preaching to the rest of the world should
be done with considerable care if one is to avoid being tagged as an
obvious hypocrite.
Dan, both preaching and calling someone a hypocrite is covered by the
First Amendment. Preach away. Tag away.
The following text has most of the details one might need on the
historical aspects:
~~~~~~~~~~~~~~~~~~~~~~~~
Interesting excerpts from _The Origins of the Bill of Rights_
Leonard W. Levy, chapter 1:
....
In sum, the usually masterful politicians who had dominated
the Convention had blundered by botching constitutional theory
and making a serious political error. Their arguments justifying
the omission of a bill of rights were impolitic and unconvincing.
Mason's point that a bill of rights would quiet the fears of the
people was unanswerable. Alienating him and the many who
agreed with him was bad politics and handed to the opposition a
stirring cause around which they could muster sentiment against
ratification. The single issue that united Anti-Federalists through-
out the country was the lack of a bill of rights. No rational argu-
ment—and the lack of a bill of rights created an intensely emo-
tional issue because people believed that their liberties were at
stake—could possibly allay the fears generated by demagogues like
Henry and principled opponents of ratification like Mason.
....
James Madison was one of the Federalists who finally realized
that statecraft and political expediency dictated a switch in posi-
tion. At the Virginia ratifying convention in June 1788, Madison
had upheld the usual Federalist arguments for the omission of a
bill of rights, but finally voted to recommend such a bill in order to
avoid previous amendments. He later conceded that the Constitu-
tion would have been defeated without a pledge from its support-
ers to back subsequent amendments. In Virginia, Madison's own
political position deteriorated because he had opposed a bill of
rights. The Anti-Federalists, who controlled the state legislature,
elected two of their own, Richard Henry Lee and William Gray-
son, as the state’s first United States senators. Madison faced a
tough contest for election to the House of Representatives, and he
feared that the Anti-Federalists might succeed in their call for a
second constitutional convention. He needed to clarify his posi-
tion on a bill of rights.
Although Madison had periodically apprised Jefferson, in
Paris, on ratification developments, he had not answered Jeffer-
son’s letter of December 1787 supporting a bill of rights. On Octo-
ber 17, 1788, the eve of his campaign for a House seat, Madison
faced the issue. He favored a bill of rights, he wrote, but had
"never thought the omission a material defect" and was not "anx-
ious to supply it even by subsequent amendments"; he did not
even think the matter important. Still agreeing with Wilson that
the delegated powers did not extend to reserved rights, Madi-
son also worried about the difficulty of adequately protecting the
most important rights; experience proved, he asserted, that a bill
of rights was a mere parchment barrier when most needed. Gov-
ernment, after all, was the instrument of the majority, which could
endanger liberty. "What use then . . can a bill of rights serve
in popular Governments?" Its political truths, he conceded by way
of an answer, could educate the people, thereby inhibiting major-
ity impulses.
Jefferson's reply of March 15, 1789, had a profound influence
on Madison, as Madison’s great speech of June 8 would show. An
argument for a bill of rights that Madison had omitted, wrote
Jefferson, was "the legal check which it puts into the hands of the
judiciary" Jefferson believed that an independent court could
withstand oppressive majority impulses by holding unconstitu-
tional any acts violating a bill of rights. The point was not new to
Madison, for he himself, when defending a ban on ex post facto
laws at the Constitutional Convention, had declared that it would
"oblige the Judges to declare [retrospective] interferences null and
void." As for the point that the delegated powers did not reach the
reserved rights of the people, Jefferson answered that because the
Constitution protected some rights but ignored others, it raised
implications against them, making a bill of rights "necessary by
way of supplement." Moreover, he added, the Constitution "forms
us into one state as to certain objects," requiring a bill of rights to
guard against abuses of power. As for the point that a bill of rights
could not be perfect, Jefferson replied with the adage that half a
loaf is better than none; even if all rights could not be secured, "let
us secure what we can." Madison had also argued that the limited
powers of the federal government and the jealousy of the states
afforded enough security, to which Jefferson answered that a bill of
rights "will be the text whereby to try all the acts of the federal
government." That a bill of rights was inconvenient and not always
efficacious did not impress Jefferson. Sometimes, he replied, it was
effective, and if it inconveniently cramped the government, the
effect was short-lived and remediable, while the inconveniences of
not having a bill of rights could be "permanent, afflicting, and
irreparable." Legislative tyranny, Jefferson explained, would be a
formidable dread for a long time, and executive tyranny would
likely follow.
....
In the First Congress, Representative Madison sought to fulfill
his pledge of subsequent amendments. His accomplishment in the
face of opposition and apathy entitles him to be remembered as
father of the Bill of Rights even more than as father of the Consti-
tution.
....
On June 8, 1789, he made his long, memorable speech before
an apathetic House, introducing amendments culled mainly from
state constitutions and state ratifying convention proposals, espe-
cially Virginia’s. All power, he argued, is subject to abuse and
should be guarded against by constitutionally securing "the great
rights of mankind." The government had only limited powers, but
it might, unless prohibited, abuse its discretion as to its choice of
means under the necessary and proper clause; it might, for exam-
ple, use general warrants in the enforcement of its revenue laws. In
Britain, bills of rights merely erected barriers against the powers of
the crown, leaving the powers of Parliament "altogether indefi-
nite," and the British constitution left unguarded the "choicest"
rights of the press and of conscience. The great objective he had in
mind, Madison declared, was to limit the powers of government,
thus preventing legislative as well as executive abuse, and above all
preventing abuses of power by "the body of the people, operating
by the majority against the minority." Mere "paper barriers"
might fail, but they raised a standard that might educate the ma-
jority against acts to which they might be inclined.
....
The history of the framing and ratification of the Bill of Rights
indicates slight passion on the part of anyone to enshrine personal
liberties in the fundamental law of the land. We know almost
nothing about what the state legislatures thought concerning the
meanings of the various amendments, and the press was perfunc-
tory in its reports, if not altogether silent. But for Madison’s per-
sistence the amendments would have died in Congress. Our pre-
cious Bill of Rights, at least in its immediate background, resulted
from the reluctant necessity of certain Federalists to capitalize on a
cause that had been originated, in vain, by the Anti-Federalists for
ulterior purposes. The party that had first opposed the Bill of
Rights inadvertently wound up with the responsibility for its
framing and ratification, whereas the people who had at first pro-
fessedly wanted it discovered too late that it not only was embar-
rassing but disastrous for their ulterior purposes. The Bill of
Rights had a great healing effect, however; it did, as Mason orig-
inally proposed, "give great quiet" to the people. The opposition
to the Constitution, Jefferson informed Lafayette, "almost totally
disappeared," as Anti-Federalist leaders lost "almost all their fol-
lowers." The people of the United States had had the good sense,
nourished by traditions of freedom, to support the Constitution
and the Bill of Rights.
