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To: BuckeyeTexan
That is scary. Never thought I would question Scalia’s judgment. Does anyone, besides Scalia, believe that the FF intended recorded conversations to be other than “effects?”

That's the problem with taking "originalism" to an extreme. Scalia would tell you that 18th century dictionaries defined "effects" as tangible objects. The problem with that analysis is that there was no way to eavesdrop in the 18th century without crouching under someone's window, which would have been a trespass on their "home." Had there been a way to eavesdrop remotely, I'm sure the Founders would not have been OK with it, but the issue didn't arise because remote eavesdropping wasn't possible.

When the constitutionality of wiretapping first came before the Supreme Court in the 1920s, the Court held that the 4th Amendment applied only if there was a physical trespass on the defendant's home or property, so tapping his phone calls was fine so long as you didn't enter his house to do it. It wasn't until the Warren Court in the 1960s that warrants were required for electronic eavesdropping. This is one instance where the "living Constitution" folks have the right idea-- you can't slavishly follow 18th century legal doctrines when social or technological changes make them absurd.

9 posted on 03/22/2014 5:35:41 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Lurking Libertarian
Whether under originalism or a living constitution, I think "effects" is applicable to a private conversation. But, IANAL.
12 posted on 03/22/2014 5:41:46 PM PDT by BuckeyeTexan (There are those that break and bend. I'm the other kind. ~Steve Earle)
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