And we could always talk about forfeiture on the roadside, and which groups of liberty-minded public servants always lobby to oppose reform....
Yes, exactly. This is the point to examine.
Fundamentally, has the Judiciary any power to amend the Constitution in either Article III or Article V?
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I agree some protections have been seriously eroded over the years. No question. But I certainly wouldn't say 4th Amend protections are almost non-existent.
To answer that we must first establish fundamentally what those protections are. That irreducibly is found in the text of the Fourth Amendment itself.
Actually from a Constitutional perspective the Judiciary has no power to legislate from the bench. They can interpret the law as it was passed by Congress. They determine if the law is either constitutional or unconstitutional but they can't as it was intended change the law or the meaning of the law in their rulings. Further more Congress over time ceded some of their responsibilities to the judiciary , but having said that Judges actually can't rule something is legal or illegal they can only work within the framework that exists .
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You're peeing into the wind. Too many folks wear a badge are in the camp of "the law is the law". Many of them would have gleefully dragged Rosa Parks off her bus in cuffs, because the law is the law.
Exactly right. The Judiciary has zero power to amend, limit, nullify, or otherwise alter the Constitution itself. That power rests solely with the Legislative branch and the states.
The practical application of this understanding is that case law, judiciary decisions, have no power to alter what is in the Constitution itself. Thus to claim that one cannot understand the Fourth Amendment by reading it is utterly specious. That is exactly how one understands it.
Resort to case law to alter, limit, or modify what is there is wholly invalid, for case law has not that power.
Thus if the text of the Fourth Amendment declares "shall not be violated," then case law has not the power to insert exceptions wherein its right may be violated unless such exceptions exist in the text itself, or unless the text itself is properly amended to specify such exceptions. Manifestly such text and such amendment do not exist, therefore case law has not the power to insert such exceptions.
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I heartily recommend Jonathan Mitchell's excellent article, which can be found at the Supreme Court network, Virginia Law Review, and elsewhere, titled: "The Writ-of-Erasure Fallacy."
The Writ-of-Erasure Fallacy
The power of judicial review is all too often regarded as something akin to an executive veto. When a court declares a statute unconstitutional or enjoins its e
papers.ssrn.com
Every law is Constitutional.... until ruled as unconstitutional by a court of law, not a group of individuals.
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