Path: utzoo!utgpu!news-server.csri.toronto.edu!cs.utexas.edu!sdd.hp.com!ucsd!pacbell.com!pacbell!well!tenney
From: tenney@well.sf.ca.us (Glenn S. Tenney)
Newsgroups: comp.org.eff.news
Subject: Re: Search Warrants & Organizations (was Re: Missing mission)
Message-ID: <9009261116.AA07629@panix>
Date: 26 Sep 90 11:16:25 GMT
Lines: 36
Approved: comp-org-eff-news@well.sf.ca.us
To: tenney@well.sf.ca.us

[If there is an alias for eff.news, I don't know it. Sorry.]

Mike Godwin states that the Federal Tort Claims Act bars actions against
the federal government in cases like Steve Jackson's.  I don't have either
the knowledge or the inclination to disagree.

(pre-disclaimer. I'm not a lawyer.)

It seems to me that you could make a good case that this makes the FTCA
unconstitutional, on the grounds that it _effectively_ destroys all
protections under the first, fourth, and various other amendments. Now
I don't know the history of decisions based on effect rather than intent,
but here's one _very significant_ case: Brown v. Board of Ed. (I think
you're all familiar with that one :-).

Specifically, while the intent of segragation was (according to its
proponents and apologists) not to violate the constitution (I mean both
the original document and the amendments), its practical effect undoubtedly
violated many rights.

Also, those of you who followed the Souter nomination hearings may recall
his discussion of Miranda.  (I must say I found his comments, on this and
other issues, to be tremendously encouraging.)  He stated that the court
had _not_ created a new right, but rather that it enacted a _practical means
of protecting_ a pre-existing right. Striking down the FTCA (or various
sections?) would be a much less proactive example of this same philosophy.

Clearly, Souter's is not the only opinion, and it may not even be commonly
held. But _I_ certainly like it. :-)

---
Alexis Rosen
cmcl2!panix!alexis

ps- If Mike (or anyone else) knows for a fact the history of this type of
view, I'd love to hear about it.