Barry Friedman on United States v. Jones

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2 Responses

  1. Brett Bellmore says:

    “Paradoxically, Justice Scalia’s approach will better protect privacy rights over the long term.”

    Nothing the slightest bit paradoxical about it: Scalia insists that the original scope of the 4th amendment is the absolute minimum scope it may have, and any departures from that minimum must be in the nature of expansions. While Alito leaves everything up for grabs, no minimum guarantee at all: The Court could some day say people don’t have a “reasonable expectation” of privacy in their very thoughts, and authorize mind reading without warrant.

    “Living” constitutionalism is, in practice, much more about evading black letter limitations on government, than adding limitations. Naturally an originalist, even one as inconsistent as Scalia, is going to be better at retaining limitations on government in the long run. They’re not trying to do the exact opposite!

  2. Shag from Brookline says:

    Once again, Brett exposes his simpletonian originalism. His suggestion that:

    “The Court could some day say people don’t have a ‘reasonable expectation’ of privacy in their very thoughts, and authorize mind reading without warrant.”

    of what might result from Alito’s approach is inane.