Strip Searches

The United States Supreme Court, the highest c...

They are, in fact, the judge of you. And me, too. (Photo credit: Wikipedia)

While the media and public were briefly focused on the Supreme Court’s consideration of the constitutionality of the Affordable Care Act, the court made a rather troubling ruling on a case involving Albert Florence.F

Florence, a finance director for a care dealership, was stopped on the way to a family event. He was then arrested when the trooper determined that there was a warrant for his arrest. While the warrant was in error (he had paid the fine in question) and he had a document to that effect, he was still jailed. While in jail he was strip searched. Six days later he was transferred and strip searched once again. Florence took issue with this treatment and his case made it to the supreme court.

By a predictable 5-4 vote, the Court ruled that anyone who is arrested (even for minor offenses, such as traffic violations) can be stripped searched. The ruling allows this even when there is no reasonable suspicion the person is concealing anything that would require a strip search to locate.

In the majority opinion Justice Kennedy noted that it would be “unworkable” to require jail officials to strip search only in cases in which they had reasonable grounds to suspect that a strip search would be needed. As might be imagined, this seems like an absurd thing to say. After all, it seems to be saying that it would not work to limit strip searches to cases in which a strip search would be reasonably justified. I certainly hope that this same logic is not extended to arrests. After all, the police are currently limited to arresting people when they have reasonable cause to suspect that a person needs to be arrested. I do hope that this is not also “unworkable.”

Kennedy did attempt to back up his point with an example, specifically that of the infamous Timothy McVeigh.  McVeigh had been arrested for driving without a license plate which caused Kennedy to note that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”

One rather obvious response to this is that his example is irrelevant to the matter of strip searching. After all, nothing about the McVeigh case involved finding something dangerous or important by strip searching him. Now, if McVeigh had been arrested on a traffic stop and the police had found a bomb taped to his genitals and had thus prevented the horrific bombing, then Kennedy’s example would have had at least some relevance. It would, of course, still be just one example and thus an incredibly weak argument by example.

It might be countered that Kennedy did not mean for this to be an example directly showing the importance of strip searching people but rather as evidence that very bad people can be arrested for minor offenses. Presumably his reasoning is that such people would be more likely to hide things in places that only a strip search would reveal. Of course, this logic would also seem to apply to having the police check anyone, such as folks who eat fast food. After all, “people who eat at McDonald’s can turn out to be the most devious and dangerous criminals.”

It might be replied that people who are arrested for minor offenses have been arrested and hence are legitimately subject to searches in ways that people who are just out and about are not subject to arrest. This can, of course, be countered by the reply that it seems to be unwarranted to treat all prisoners the same, regardless of the offense and other factors. After all, if the police can distinguish between who should and should not be arrested, they should be able to distinguish between who needs to be strip searched and who does not.

This can be countered by arguing that the strip searching is done for the safety of the prisoners and the guards. After all, if everyone is strip searched, then the chances of dangerous items getting into prisons is somewhat lower. However, there is the fact that the overwhelming majority of people who are arrested for minor offenses are not concealing anything and to strip search people on the minute chance that they have something would be overreacting. To use an analogy, putting all prisoners in straight jackets and masks would provide greater protection, but that seems needlessly excessive for the vast majority of prisoners.  There is also the rather important fact that people are not supposed to be subject to cruel and unusual punishment.

While searching prisoners is a legitimate practice, strip searching certainly seems to go beyond what is needed in the case of minor offenses. After all, even Alito notes that strip searches are humiliating. As such, to subject a minor offender to such unnecessary humiliation  would be to punish them in cruel and unusual ways-even before they are found guilty.

Naturally, the ruling does not require that everyone who is arrested be strip searched-it just allows it to occur.  Alito even noted that for most people arrested for minor offenses, “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable.” As such, jails could elect to house those arrested for minor offenses apart from the general jail population and not strip search them. However, the fact that this could be done does not mean it will be done and there is the rather obvious concern that this ruling will be exploited to allow the humiliation of people who are arrested on minor offenses. This would add nothing to public safety and would merely serve to impose on liberty, privacy and dignity.

Given that the court accepted that the police have a right to strip search and arrested citizens even without probable cause, it would seem sensible to think that they will rule in favor of the Affordable Care Act. After all, if the state has the right to strip you naked and check out your junk when you are arrested for anything at all, then surely the state has the power to require you to buy health care insurance. In fact, given that an increased number of Americans will be exposed to the chilliness and psychological stress of being strip searched, they will need health insurance more than ever.

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29 Comments.

  1. The ruling appears to lack any degree of sophistication.

    On another point – As people are living longer, the Supreme Court should surely consider a term limit; say 25 years max.

  2. Dennis Sceviour

    “The law is reason free from passion (Aristotle)”

    Does this mean the law should use reason and logic rather than passion in its decision making, or does this mean that the law is the reason?

    There is a difference in how a person sees or approaches jurisprudence. In the first possibility, it has been noted that passion and the adjoining emotions of empathy and kindness can and do govern judicial thinking. There are times when the use of reason and logic can be of use, but there are also times when passion should prevail.

    The second interpretation however is common. What it means is that judicial decisions should be in favour of the law, independent of reason or passion. It means that the answer to the question “Why?” is because it is the law. It means that the law comes first and people come second. It means that the law can look after itself without considering anything else. It means that the law and those attending to its functions are more important. The law cannot be proven by reason, but only by force.

    In my opinion, the first approach to jurisprudence should be the guiding principle. I am not sure if a poll has ever been taken on how many people understand the difference or hold to either point of view.

    In the matter of strip searches, Mike LaBossiere has shown that there is no logic in the decision. There is no use for strip searches other than to satisfy the perversion of those working in the legal industry. I would be one of the dissenting four votes in the Supreme Court decision. Therefore, it could be concluded there are five members of the American Supreme court that hold to the second approach to judicial reasoning.

    Although the quotation is attributed to Aristotle, I was unable to find a specific philosophical analysis of the phrase. Nor could I find the exact quotation in any English translations of Aristotle. The closest I could find was:

    “Neither passion nor ignorance of the right rule can extenuate responsibility (Aristotle on Ethics)”

  3. Merely following the letter of law is not law at all.Follow the spirit of law too.

  4. That’s why the judges have pointed heads

  5. Dennis Sceviour

    @Michael Reidy,
    Maybe five out of nine judges.

  6. POD,

    There do seem to be some grounds for re-considering life appointment. So far, however, judges have generally decided to step down before they have lost it.

  7. Dennis,

    Good points. When Sotomayor was going through the conformation process there was a bit of flap over the matter of empathy. Obama came out in favor of empathy in judges and regarded that as a good thing. Shockingly enough, folks on the right bashed the idea of empathy.

    I’m inclined to see value in both reason and emotion when it comes to justice. On the one hand, reason without passion has its advantages-most namely that the law is applied without emotional bias. That would seem to be rather important to unbiased justice. On the other hand, simply applying the law without any feeling could lead to rulings that are too harsh. There is, after all, something to be said for justice tempered with mercy-and mercy often seems to come from the heart. Then again, if true justice is dispensed, then mercy would be unjust. That said, obviously no system dispenses true (“Platonic”) justice, hence mercy seems to be worth considering.

  8. Dennis Sceviour

    I do not see reason or passion in the judicial opinion. Disturbing is the specific events of the case. The person was detained because of computer database information about – you guessed it – something about the law. The Fourth Amendment protects people from unreasonable search and seizure. People who are arrested, detained and stripped of everything because it is the law is a complete violation of the Fourth.

    In the judgement, Justice Kennedy also wrote of the “needs of the institutions” and “Contraband creates additional problems because scarce items, including currency, have value in a jail’s culture and underground economy.” As Justice Breyer noted in the dissenting opinion, “Those confined in prison retain basic constitutional rights.” However, by stripping people of all items of value then the Fourth Amendment becomes redundant, as there is nothing left to search or seize. After this judicial decision, under what conditions could the Fourth Amendment protect anyone?

  9. Dennis,

    “Although the quotation is attributed to Aristotle, I was unable to find a specific philosophical analysis of the phrase. Nor could I find the exact quotation in any English translations of Aristotle. The closest I could find was: “Neither passion nor ignorance of the right rule can extenuate responsibility (Aristotle on Ethics)””

    Try a reading of: – Wilhelm von Humboldt, The Sphere and Duties of Government (The Limits of State Action) (1854 ed.) [1792] http://files.libertyfund.org/files/589/Humboldt_0053_EBk_v6.0.pdf

    The issues covered apply some understanding of the difference described with many observations seemingly quite applicable in this information era where the general application of rules is deemed a necessity.

  10. Dennis Sceviour

    Ian,
    Thank you for the reading. I took a brief look at it. However, I find it difficult to understand how it relates to the current article. The reading does not mention Aristotle’s quotation, strip searches, or liberty. Were you expecting a lengthy critique?

  11. Dennis,

    Not at all, the comment was made in the context of this article, and the entry referred to, and requires digestion rather than suggestion.

    Briefly then; the introduced reading observes that where moral reasons or laws are constructed and then enforced there is a tendency to assure their correct interpretation and implementation, leading to a reduction in the liberty of individuals beyond the original constraints the original may have imposed or intended. Clearly there is a need for understanding to accommodate the time in which it was written, but the general thrust philosophically covers the specific issue you raised and provides some explanation of why that may occur, hence providing some insights into the basis of your original comment and indeed this article as a whole.

  12. Dennis Sceviour

    Ian,
    As I understand, the premise of the article “Spheres and Duties of Government” suggests there should be a limit to the amount of action that a government can take. Yes, that sounds reasonable, but the reading assumes that government creates the law, its actions, and its interpretation. However, the American constitution recognizes that the people create law and its interpretation. Further, most governments are composed of departments that have nothing to do with the law, but rather deal with citizens as a general populace (eg. mail delivery, sanitation, etc). The law is a concept that deals with the individual and individual moral responsibility. Many writers, Humboldt included, seem to trip over their own toes on this difference. The American Supreme Court decision is neither a creation nor an action of the government. It is an interpretation of an existing right — specifically the Fourth Amendment. Or perhaps I should say the decision is a complete defiance of the Fourth Amendment.

    Perhaps the point you are raising is that government is increasing the amount of taxation dollars towards law enforcement. Yes, that would be an apt observation of a problem, but seems to have little to do with the Supreme Court decision concerning the strip searches. If the Supreme Court says this is reasonable, then what is an unreasonable search and seizure?

  13. Dennis,

    “but the reading assumes that government creates the law, its actions, and its interpretation. However, the American constitution recognizes that the people create law and its interpretation. Further, most governments are composed of departments that have nothing to do with the law, but rather deal with citizens as a general populace (eg. mail delivery, sanitation, etc). The law is a concept that deals with the individual and individual moral responsibility.”

    Extending the approach you present above means that the people themselves directly selected the judges and hence the judges represented the peoples wishes in the disputed verdict regarding strip searches of everyone as a means of assuring organisational security. Inevitably the courts result from and are formed by government policy, as such they interpret and coercively enforce those policies presented as law. It is difficult to imagine government departments which are not governed by legislative edict (law/regulation), so I will not explore that element further, or the difference between different types of law.

    Whether the law comes to the government through the people or the government presents itself as representing the people in the laws it passes becomes a mute point when considering how the laws are interpreted and implemented.

    Most philosophers seem to trip over their own toes in many areas, but taken generally many philosophers equally document much wisdom (if that word in its common sense could suffice). In the document in question Humboldt analyses the individuals approach to morality, social structure and government, so does cover, from his perspective, the divide between morality and law, or governance, and specifically mentions the advantages and difficulties associated with constitutions, just as his prime focus appears to be on the freedoms of the individual so he covers the ways governments apply limitations upon those freedoms and often, almost in a Humes Treatise of Human Nature approach, why/how.

    Clearly understanding is vested with the individual perspective applied to each part of a document and how those elements are brought together, so digestive processes do differ in outcome; some appearing as considered, some as rhetorical, depending upon the audience.

  14. Dennis,

    You certainly hit a key point of the matter. If strip searching people arrested for minor defenses is reasonable, then it makes one wonder what could count as being unreasonable. Search via vivisection, perhaps?

  15. Dennis Sceviour

    Mike,
    I have a few suggestions, but I do not want to give them any more ideas. :mad:

  16. Dennis Sceviour

    Ian,
    “The judges represented the peoples wishes…”
    Yes, judges are supposed to be representative of the people.

    “Inevitably the courts result from and are formed by government policy…”
    No, courts would exist without government policy.

    “It is difficult to imagine government departments which are not governed by legislative edict…”
    It would be impossible for many departments to function if they had to follow government policies. Do you have any idea how many libraries of government documentation an architect would have to read to design a building according to government regulations? Any competitive architect would simply ignore them until they became an issue.

    I will try to read more of the Humboldt paper when I get the time.

  17. Dennis,
    “Yes, judges are supposed to be representative of the people. “

    Not to confuse those areas of law directed by governing principles, themselves defined by political entities, which directly instruct courts in the work they do. i.e. Common law or religious issues and areas of human rights — That representation of the people seems more the role of members of a jury, with judges interpreting the legal issues which themselves were implemented by some form of governing body hopefully representative of the people (and interpreted here as political entities).

    “No, courts would exist without government policy. “

    That statement would seem to indicate that courts predated government. It seems from my readings that the two intertwined and worked together but that some form of leadership pre-dated courts which then arose out of a requirement by ‘leader(s)’ to communicate a type of social standardization (almost a sociology by rote) to reduce/deal with internal social disputes and promote social harmony — something which sounds like governance and policy to me. [Viewing politics from a similar point seems to eventually lead to some form of representative government.] All those elements struggle with maintaining their own values by implementing measures intended to provide stability but which eventually create conflict, an area where politics regenerates, mostly flourishes, and often deliberately generates as a means of achieving direction. i.e. The standardized strip searches as an interpreted requirement of law in order to maintain security v the moral/ethical/emotional factors denying such a thing (apologies for mixing ethical science with the emotional but that seems to be the generally accepted thing in many areas). Religions form part of that same process.
    Hope that illuminates some of my direction in these responses, but do not interpret it too rigidly as it is more of a doe ray me so type of directed description.
    If you are saying that some form of arbitrary and coercive decision(s) made by person/persons who decide what is best for people means a court is a legal judge, then it would seem you are applying a monarchical interpretation to the justice process. Something like a warrior king/judge/executioner conception which does rather seem to grow in popularity from time to time within parts of the legal sphere — I agree that legal systems are hierarchical, which could be interpreted as you intimate — but they are also inherently political, something which is emphasised differently within the nation states.

    “It would be impossible for many departments to function if they had to follow government policies. Do you have any idea how many libraries of government documentation an architect would have to read to design a building according to government regulations? Any competitive architect would simply ignore them until they became an issue.”

    You seem to be saying no rule is followed unless it becomes an issue. Recognized or unrecognized, depending upon how they are educated, many people most frequently follow them anyway. Recognizing when following or not following, and why, then deciding, seems to be the crux of that issue. So only recognizing a regulatory matter as an issue when a decision is required appears as nothing more than a straw man.

    Thank you for the discussion and digression into the fundamentally wider area containing many of the influencing factors surrounding the strip search issue, it has motivated me, in my own research, to look for more relevant material. So much today is broken down to its singular components or factors as a means of providing focus that the as important holistic view becomes unpopular, or simply not seen. As socially and politically important as that holistic view is, the issues still emanate from fundamentally individual human sources.

    An informative contrast to the strip search debate in the USA is the Bill Henson 2008 case and subsequent debate in Australia. A recent link is http://ipa.org.au/publications/1360/what-has-happened-to-modern-art
    Many of the wider issues discussed in this thread are equally illustrated there.

  18. Dennis Sceviour

    Ian,
    Mike LaBossiere teaches a course in art aesthetics, so he may be very interested in the thread on child pornography. Personally, I have no taste or interest for viewing such material, but then I must ask myself should my own personal objections interfere with those who feel differently. Is the art reasonable or unreasonable, and is the allowance of such art “unworkable”? A recent Supreme Court decision has taken this to be a requirement for an interpretation of the Fifth Amendment:

    http://www.supremecourt.gov/opinions/07pdf/06-694.pdf

    Most of your discussion seems to concern the Fifth Amendment, which protects people against abuse of government power. The strip search decision regards the Fourth Amendment, and I would have liked to limit my commentary to the immediate article without digression.

    I do not have a dislike for heuristics. However, they are only one method of decision making. Further, there are so many rules that one can conceivably find a rule to make any decision. Such is the observation of the Supreme Court, which continually makes opposing decisions and dissents. Justices already argue endlessly over which political side should win or lose, yet no mention of this is ever made in a decision. Readers have to guess.

    The heroic role of the Supreme Court is to strike down law and declare liberty. The Supreme Court has the easy task of simply upholding the rights of the American Amendments, which are protections for people against the law. When they hold the American Amendments in defiance, and make a ruling in favour of the law, then the reasoning is suspect or absent.

  19. Dennis,

    That is very wise. :)

  20. Dennis,

    I’m against child pornography on the grounds that 1) children would seem to be incapable of giving informed consent to participate in the process and 2) it is morally incorrect to treat children as sexual objects. Naturally, I’d need full arguments for these claims when making a full case. As such, I have no objections against banning child pornography.

    However, there can be a point of reasonable dispute regarding what counts as porn. For example, parents often take photos of their kids in the bath and so on. They do not intend to create porn, but perhaps some people would use such photos as they would “actual” porn. This raises the issue of whether it is the intent of the creator or the viewer that makes something porn (or some combination). There are also the “artistic” photos people take of kids that are not explicitly sexual, but do show nudity.

  21. Dennis,

    “Mike LaBossiere teaches a course in art aesthetics, so he may be very interested in the thread on child pornography. Personally, I have no taste or interest for viewing such material, but then I must ask myself should my own personal objections interfere with those who feel differently. Is the art reasonable or unreasonable, and is the allowance of such art “unworkable”? A recent Supreme Court decision has taken this to be a requirement for an interpretation of the Fifth Amendment”

    The point made was the contrast between how the naked form was dealt with by legal systems and was not restricted to any particular focus on or within a legal instrument. Clearly we have and are approaching this situation from different directions.

    1. The court decision allows the legal system to implement the strip searching of people specifically as part of the entry process to a coercive regime and seems to be being used to support and implement coercion at that early entry stage. I suspect cavity searches will be restricted to those who cause some upset during that process, or do other guidelines exist for that? It also seems likely that a logical extension of achieving a naked prisoner upon entry to a system would be to require all persons to also be showered/bathed in order to cleanse them at that opportune time. (A type of function creep?) Perhaps some guidance will be required to make sure any such cleansing is carried out within acceptable parameters. (Whilst it is possibly to view those as extreme and reactive views they do quite logically follow from the court decision. — I am not aware if the USA had them, so have a look at the historical Georgian workhouse systems in the UK for similar types of entry processes.
    2. The interpretation of any work of art is down to the viewer. My own interpretation of the image concerned in that particular case was focused on the emotive content and its symbolic representations because of the justifications given for it being presented as an artwork; And I agreed with the justifying sentiments. However, looking at it with cold logic does allow for other less savoury interpretations. The reason for presenting that case into this discussion was the contrast between both the emotions/confusion and reactions of interpretations about the courts decision in the strip search case involving nakedness, the different ‘court’ process involved in determining the photographs art worthiness, and the reactions of different parts of the legal system versus aesthetic appreciation. Our differing reactions appear to be part of that human diversity and reflective of those same issues.

    Whichever interpretation of pornography you wish to adopt as regards nakedness is obviously as your views determine, but the value of the contrasting elements in these two cases remain, in my eyes, of value in potentially understanding some of the influencing factors of both.

    “The heroic role of the Supreme Court is to strike down law and declare liberty. The Supreme Court has the easy task of simply upholding the rights of the American Amendments, which are protections for people against the law. When they hold the American Amendments in defiance, and make a ruling in favour of the law, then the reasoning is suspect or absent.”

    Really, that would mean they do not have to attempt to assure by their verdicts that the law of the land is consistent and supportive of those freedoms from within which the court is formed and owes its own security to, whilst at the same time reflective of and consistent with those international instruments which are relevant within the jurisdiction. In short do they not have to determine the precedence of any influencing factors upon their decisions. Could the Supreme court also interpret the constitution in a way which does not openly reflect the founding fathers wishes?

    Do not misunderstand me in the above observations, any generic and coercive mechanism clearly has a local purpose which may or may not be logically justified from any particular viewpoint, but coercion is frequently wrong when viewed from a libertarian perspective and hugely dysfunctional when viewed from some others.

    Have come to post my comments and see Mikes entry. I agree with those comments.

  22. A quick correction to my last post due to a very hurried addition at that time. The last sentence was not correct, instead of saying I agree with the comments it really should have said I agree with the sentiment, which more appropriately recognizes the complexity of the area.

  23. Dennis Sceviour

    Ian,
    “I suspect cavity searches will be restricted to those who cause some upset during that process, or do other guidelines exist for that?”

    As I pointed out earlier from an extract, the opinion amounts to allowing the search and seizure of travellers for money. I can see no perverted reason for observing bathing or cleansing procedures. This does not concern a medical examination by qualified medical practitioners.

    The child pornography situation does not have to involve nudity, but could mean sexually suggested positions or dress. Pornography digresses too far from my understanding of the problem of the Supreme Court ruling.

    “Could the Supreme court also interpret the constitution in a way which does not openly reflect the founding fathers wishes?”

    They can and do quite often. Although the opinions seem like precedents, the next sitting on strip searches will probably render a different opinion by different judges. Alternating opinions are a trademark of the American Supreme Court. They prefer to give case by case opposing views. It does seem like futility sometimes.

  24. Dennis,

    “As I pointed out earlier from an extract, the opinion amounts to allowing the search and seizure of travellers for money. I can see no perverted reason for observing bathing or cleansing procedures. This does not concern a medical examination by qualified medical practitioners…”

    Referring back to the beginning, the original object of the discussion was the generic and coercive strip searching, as a prelude to incarceration into a correctional institute, regardless of the need for such an intrusion for many of the persons entering the institute. The extensions from that were an intention to explore the consequences of the same logic applied to the resulting situation.

    There are as many forms of tax as there are money, but if the freedoms and liberty of the subject of a search within the social arena are to be respected, from a libertarian viewpoint they would need to be advised when a search with such an objective were to take place and why. (Not to clearly inform would create some paradoxical conflict within the individual concerned requiring a form of justification.) Where other purposes/objectives are included those more ephemeral objects would need to be identified and themselves searched for purpose, relevance and objective. If, as often in many spheres, the integrity of the process involved, which itself may be coercive or deceptive in some way, is deliberately hidden, then they should, as you have stated earlier, be challenged as “then the reasoning is suspect or absent”; Having reflected upon that statement I would add to that; “or not completely made apparent” (Being distinctly different from suspect or absent).

    Relating that to the discussion in hand; One problem for individuals within the social sphere appears to be the multiplicity of goals they may come across and the different ones sometimes intended for themselves by others, do/can they focus on theirs, should they focus on others, or is it possible to do both. Clearly different levels of knowledge provide different interpretations so communications; themselves conducted at different levels, become important in reaching a common understanding. Unfortunately some will in their very communication intend a deception as a means of obtaining a particular objective, others will merely follow the plain route of a conversation in reaching theirs. In those varied situations the choices of the individual surely become the point where judgement may become apparent and some measure(s) may be applied to the different elements involved.

    So as useful as contrasting and dissenting legal opinions are, it would appear to be the interpretation, in addition to the merely regurgitated presentation, of those opinions as a whole which should assist in providing a more general understanding of any particular social situation involved within any communication (restrict that word to situation if it assists interpretation) by the different characters involved as either contributors or readers.

    So to provide a precise summary, my own individual conclusion is that we do agree about the freedoms and liberty of individuals, what we seem to disagree about is how those freedoms and liberties are exercised; which to me seems as reflective of the generic coercive strip searching of prisoners as it does so many other areas of life where particular standards are expected or implemented; As applying any generic tag or constraint, either as an individual or a social group can constrain those very things by not allowing individuals to correctly express themselves or measure others. One of those paradoxical sayings keeps appearing to me ‘You cannot enforce respect’.

  25. Dennis Sceviour

    Ian,
    With the phrase “I can see no perverted reason…,” I meant to say, “I can see a perverted reason…” I am sorry for the mis-spelling and the resulting confusion. My perverted spell-checker does not like the word “unperverted” so it changed the spelling. To make corrections after a posting, I think I need Zemanta or something. “It”s look like “If”s to me, so if the spell checker does not tell me about the error, I may not see it. Jeremy may only allow himself and article authors to make corrections. I will have to remember to ask him.

    “The integrity of the process involved, which itself may be coercive or deceptive in some way, is deliberately hidden…”

    Yes, I agree. It was noted that some of the discussion was about the “needs of institutions”. This is an explorable observation. However, more important to me is that the events of the Florence decision started outside of an institution. The perpetrators were probably concerned they could not perform a public strip search. To make it “legal”, they took the victim to a place where it was considered “legal”, or at least not stoppable. This reasoning should not be allowed to interfere with the intent of the Fourth Amendment.

    ‘You cannot enforce respect.’

    I disagree. I have never heard of any such paradoxical saying, which I think you made up for literary purposes. The phrase needs some clarification. First, there is no need for the personal, so it should be re-written “Respect cannot be enforced.” Next, there are different meanings for the word respect. Respect seems some kind of code word. There may be at least two different meanings you intended for Respect:

    Honour — meaning an understanding of equality among peers.
    Subservience — meaning servitude and a class recognition of unequals.

    I disagree that either of these cannot be enforced. They can be proven by force, which could produce the axiom “What cannot be proven by reason, can be proven by force.” Such would be the interpretation of the perpetrators of the strip search, and I suspect influenced the judicial opinion.

    As a side thought, note the class distinctions of the Hindu caste system. This is an example of a subservient class system reasoned and accepted by a people, without force.

    There is more than “different levels of knowledge” to reach a common understanding in communication. There is also the heartfelt attitude of appreciation for life, and empathy for another. This is something that can be communicated without words. That brings the discussion full circle to a better interpretation of Aristotle’s alleged quotation:

    “Law should use reason and passion.”

  26. Dennis,

    “It was noted that some of the discussion was about the “needs of institutions”. This is an deplorable observation.”

    I agree, but true none the less, just as the observations about individuals using legal or organisational processes as a response to inherently personal feelings may at times be. As stated previously it all seems to come back to the individual.

    “‘You cannot enforce respect.’ I disagree. I have never heard of any such paradoxical saying, which I think you made up for literary purposes. The phrase needs some clarification. First, there is no need for the personal, so it should be re-written “Respect cannot be enforced.” Next, there are different meanings for the word respect. Respect seems some kind of code word…”

    The words used were a summarisation of one interpretation of the word ‘respect’. I agree phrasing it in the personal sense was not right, I was insufficiently considering the person at the other end of the conversation at that moment, we can agree the correction is a more balanced representation of what was meant.

    However the overall consideration between us is different, the normal representation of that word (respect), as communicated in my direction in this conversation, appears to have a disciplinarian basis, whereas the one being used this end does not. This has appeared as a common issue throughout this particular conversation and I suspect emanates from the different world views being presented.

    In an attempt to clarify the sense of the word as used here:

    Respect appears as a feeling which is earned and shared by different parties, not enforced as a feel good factor for any particular side.

    From a disciplinarian viewpoint respect is instilled by discipline in its various forms. Many definitions of discipline frequently then lead to situations where coercive mechanisms are seen as the correct means to achieve respect, in the form of subjugation; In that sense respect is only perceived from one point and does not take account of the point of view of the other, so may be considered a one sided or deceptive form.

    Examples elaborating both definitions appear in dictionaries and on the net.

    “There is more than “different levels of knowledge” to reach a common understanding in communication. There is also the heartfelt attitude of appreciation for life, and empathy for another.”

    We speak of the same things there then, although clearly both process different levels of knowledge in different areas and express them using different words utilizing different definitions based upon different experiences. It is a good job that we may communicate freely and tolerantly whilst applying some level of understanding and comprehension, without muddying rhetoric or the imposition of enforced guidance, in order to reach a clearer understanding between us.

    Thank you for the conversation.

  27. Dennis Sceviour

    Ian,
    Yes, and thank you for your viewpoints.

  28. ‘…even Alito notes that strip searches are humiliating’ – I am not sure if Alito understands the concept he opines. ‘humiliating for whom?’ Surely a naked person is most certainly the vulnerable one in front of an officer fully clothed. The naked person is made humiliated in response to the situation that is created by this ruling – the “strip searching.” One person could be perfectly comfortable with exhibiting one’s body upon a command of a man in a uniform. In all this humiliating is the ruling; this decree that places everyone on a criminal standing also stretching the arm of the police institution to literally trespass one’s property that being one’s body. Our country emphasizes liberty. A free person has the right to his property. That property idea does not leave behind those who don’t own a land. That property includes a body. Body is a thing and the person who dons it that body belongs to that person. Ultimately the freedom of a body is essential because it is through this body experiences are initiated and with experiences we learn! What is happening here is an interesting form of mockery of the so called free people by dehumanizing them through such laws that lack modern scientific reasoning. it shows the quality and the health of these judges’ intellect; this also reflects a loss of aesthetic in our country. something is making us ugly and we need to talk about ways to amend this.

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