Consent, Submit, Forest, Trees

Kip Esquire has a good post, “On ‘Consenting’ versus ‘Submitting’ to a Search.” The upshot is:

If you happen to be stopped for a search such as this, you should not say “Yes I consent” or “Sure, go ahead.” Rather try saying something like “I consent to nothing, but if you are requiring me to submit to a search, then I will comply.” That may sound a little too “Borg drone,” but it should preserve your Fourth Amendment rights.

I got this wrong in a comment, and I want to discuss that a little.

I don’t believe that our Constitutional rights were intended to, or ought to, turn on a turn of phrase, or slip of tongue. They ought to be more robust than that. This brings to mind a good post at Prawfsblog, where Hillel Levin discusses missing the forest for the trees, and ends, “Missing the Quarter-Pounder for the French Fry,” which ends:

If this analysis sounds familiar to you, it is probably because I have applied the same reasoning in the past. Sometimes we lawyers are so locked into doctrinal minutia and the role of the court that we lose sight of the quarter-pounder for the french fry.

I think that Thomas’ comment in Kelo sums it up best: “Something has gone seriously awry with this court’s interpretation of the
Constitution
.”

2 thoughts on “Consent, Submit, Forest, Trees

  1. But the direct interpretation of the letter and words of the laws is exactly what the ‘Law’ (as a profession an procedure) is all about. In particular to the Constitution, the written word is basically all we have to go by, so getting down to each individual word and the meaning therein is all there is to work with.
    Written law is a fixed, ummutable basis on which to build interpretation. Unless that law is changed or overturned, the very words must function as the foundation for all implementation and application. It’s no wonder every word is scrutinized within an inch of it’s ink.

  2. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Neither submit nor consent appears in the 4th amendment. If you’re scrutinizing those words, you’re scrutinizing the wrong words. IMHO.

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