| Spanky |
09-13-2005 09:01 PM |
In the spotlight losing my religion.....
Quote:
Originally posted by Captain
I think the exclusionary rule is the product of not wanting to jail the policeman who violated the rules but still wanting a penalty to apply against law enforcement. The Founders live in an age when tarring and feathering the British constable was a noble sport. The issue wouldn't have arisen for the Founder because they would have been happy to throw both the cop and the perp in jail (which is probably the right solution). We needed the exclusionary rule because we stopped throwing cops in jail.
|
They don't throw cops in jail for evidentiary violations that I know of. The proper response is a civil action against the police department. But we are the only country that throws probative evidence out of court because it is "fruit of the poisonous tree".
Quote:
Originally posted by Captain I do think there is a long tradition, though, of finding that abuses of the system against a person shift burdens away from the accused - for example, following Jefferson's election, you were released if convicted under the Alien & Sedition Acts, regardless of what you may have done. But I don't know if this tradition was actually incorporated in decisions. Might be an interesting topic for research.
|
OK
Quote:
Originally posted by Captain Busing, of course, couldn't be envisioned by the founders, since the founders, even in much of the North, would have assumed blacks were in slavery. However, the drafters of the civil war amendments were very fond of extreme actions against the south, and the 14th amendment explicitly bars many Southerners from public office. Reconstruction was not a pretty episode, and busing would have been a mild solution to them. I don't view busing as raising very difficult questions of intent.
|
Punishing the South? How about punishing every school aged kid in America. You live right next to a high school but you have to be bussed accross town to achive desegregation? I don't believe in Separate buy equal but I also don't believe in forced diversity though forced geographic relocation.
Quote:
Originally posted by Captain Roe is farther afield, and has much to do with a radical shift in sexual morays that was precipitated by the development of new technology (birth control). I wrote (but never published) a lengthy paper once on the interaction between the development of birth control and changing social mores, focused on the period around World War I (and specifically on the government's provision of condoms to soldiers in World War I). I think there was a concept of broad inherant rights in the founders, and privacy is not a bad term for these rights though also not ideal, but that abortion and birth control just were not yet part of any realistic legislative equation. So I think Roe is a question of how do you apply old rules to new situations, which is a traditional kind of common law analysis. I would have relied more heavily on the 9th amendment myself, and would have avoiding things that look like setting hard rules (e.g., cutoffs by trimester).
|
OK |
