:bs
Please show me where the bolded is within their Constitutional power to interpret the law.
Well, first, you show him the clause that says that nothing explicitly described in detail in the constitution is covered by the constitution.
Then, prove that all the founders that agreed (that's all but TWO) that common law judicial review should apply to Article 3 courts were lying.
Then explain why the founders thought that this ultra-rigid approach wouldn't fall apart the second a new question had to be answered by a court, like whether or not scanning the outside of houses for heat constitutes a "search".
/snort.
How in the hell is that not a search?
I do appreciate the question. It's one I like to ask because it's one that intelligent people disagreed about. It is a good example of why constitutional interpretation is a can of worms from hell, if you actually intend to reach a decision that is consistent with the constitution.
Now, people believing in the view I responded
should say
"the constitution doesn't say anything about measuring heat emanating from houses, so it's not a search". That's what they should say if what they said was honest. I mean,
it doesn't. Show me where the Fourth Amendment says "Infrared". Seriously. Do it. You can't, you lost.
What I just said in blue is what a number of the declarations in this thread look like to me. It's dimwitted and insane. The founders are on record suppotring importation of judicial review of common law principles to Article 3 courts, but even if they didn't, who on Earth would imagine that they expected courts to shrug their shoulders and do nothing when new facts raised questions they didn't conceive of?
I recommend you read Kyllo v. United States, 533 U.S. 27. Cops, not using a warrant, used thermal imaging to detect a house with an oddly hot outside, around the garage.
I think it's a 2000, maybe 2001, decision. Should be on the SCOTUS site, in probably in a lot of other places. Very intelligent people, some whom I think were wrong and some whom I think were right, argued at length about it. They went to these lengths to try to establish that
their interpretation of the history of the 4th Amd pointed to the position that the founders would have considered it a search, while others disagreed.
If memory serves, a minority (dissent) said: thermal imaging of the
outside of the home that did not reveal details about the details of private life inside the home was
not a search in context, because it was a home with a pot farm in the garage during winter, and - again, IF memory serves - the heat produced would have melted snow on areas of the outside of the house around the garage had it been winter and snowed when scanned.
Meanwhile the majority said that despite the fact that we're talking about heat emanating from the house, the device used and its nature equated to an intrusion of the inside of the home, which requires a warrant.
The minority pointed out that the author of the majority opinion was being inconsistent with other things in other opinions (standardization of technology as impacting reasonable expectations of privacy, etc).
They also said about 30-60 pages of other things not coming to mind at present.
This took a lot more pages than would be expected if constitutional interpretation was reading a few lines and declaring what they clearly must mean. And that gets to yet another reason why internet commenters blabbing about the constitution is usually stupid: it's far more complicated than simply even reading an opinion about the constitution plus the provision. You read an opinion, the decisions it cites, the decisions they cite, and so on and so on and so on, on the point in question. The more legal experience you have, the better you can identify what you do and do not need to read. But it takes a lot of work, a lot of time, and a lot of words. And then, when you go to file the brief, you have to reduce your wordcount by 50% or something. And that's why lawyers go bald early.
Let me put it this way. When I file a brief, I've generally skimmed about 1,000-10,000 pages of caselaw and read 200-1,000+. Trial lawyers spend more time on factual analysis, but I'm appellate.
It's long, hard, difficult work. It takes a long time to do well. It's why we cost lots of money, unless like me you are dumbly idealistic enough to devote your time to representing the poor because you are angry at the government for specifically choosing the poor to **** over most spectacularly.