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My Commie Cab Ride
none ^ | Now | Me

Posted on 01/08/2003 8:37:36 AM PST by Big Guy and Rusty 99

Sometimes, because my wife is six months pregnant, I must take a cab to work. Today, I had the "pleasure" of having a commie taxi driver. Our conversation started with my referring to the fact that the bank I work for is closing. He told me that you'll see more of that with a Republican administration in office. He told me how Highway 436 was filled with vacant shops during the Reagan Eighties.

I asked him: "Doesn't that fall on the role of the Governor?"

He said: "Ok. Nationally we were left with the biggest deficit ever under Reagan."

I told him: "Only because the Democratic Congress went back on their word to cut spending to balance the tax cuts."

He went on to blame talk radio because "It is easy to push the hot buttons of people."

I replied: "Talk radio is 'right wing' is because left wing shows fail every time."

He changes the subject: "It's like Iraq. We have no business being there."

I said: "He has nuclear and chemical weapons."

He said: "So do twenty-five other countries."

I said: "He's used them on his own people."

He said: "That's their own business."

I said: "With that kind of attitude, there would be no Jews in Europe."

He said: "If Irag attacks Tel Aviv, Israel will take care of it. Besides, that's not why we attacked the Germans."

I said: "Yes, I know that. We joined World War Two because they attacked our allies. Israel is one of our allies."

He said: "It was a different world then . . ."

I said: "It's the same world."

I couldn't look at his face. He had nostril hair long enough to braid. He also had lots of crusties, so that his nose hairs looked like stalagmites (or are those stalagtites?)

He said: "America of today is like Germany of 1930. Our civil rights are being eaten away with Homeland Security."

I asked angrily: "Are you comparing our President to Hitler?"

He worriedly shot back: "Uh no, Hitler was nuts."

I asked angrily: "Are you going to comapre the World Trade Center attack to the Reichtag fires?"

He worriedly shot back: "Uh no . . ."

He says: "I am just worried about my civil liberties. There was a case in Florida were a family were held in handcuffs and their dog shot just for being suspected of a crime."

I asked: "Would you rather that a cop gets shot?"

He said: "If it protects my civil liberties, yes."

I asked: "Aren't police officers there to protect you from crime?"

He trailed off: "Yes, but . . ."

He started to praise Clinton and how he was attacked by a "vast right campaign" started by right wing radio, while Reagan was given two presidential honeymoons because he was shot.

I asked: "Are you blaming him for that?"

He said: "No, It wasn't Reagan's fault. But he left this country a mess and Bush Jr. is taking away the rest of our civil liberties . . . "

We got to my destination. He is ranting on about his civil liberties and how Bush is taking them away. I really need to get to work. I pay him. (Yes, I did give him a tip even though he's a commie.)

I asked: "Do you like Lincon? Do you think he was a good President?"

He said: "Yes, He was pretty good."

I asked: "Did you know that during the civil war he suspended Habeus Corpus?"

He had no answer but kept on his Bush bashing rant. I told him: "Save your arguments, I've heard them all before." I got out of the cab and wished him a good day.


TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; Miscellaneous; Philosophy; Politics/Elections; US: Florida
KEYWORDS: commies; florida; liberals
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To: MAWG
"busting that sorry-ass raghead in the nose . . . felt good."

Nice --I hope you used your briefcase!

81 posted on 01/08/2003 10:13:50 AM PST by Crowcreek
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To: Big Guy and Rusty 99
I live in NYC and use Taxi's ALOT. (yes, I hate the subway) anyway I had a cab driver that actually spoke ENGLISH (shocking!) a few months ago...he informed me that the reason we have so many homeless people in the city is because space aliens sent them here because they were "angry" with the Mayor. Ok?

I got out of that cab REALLY quick!
82 posted on 01/08/2003 10:15:23 AM PST by FeliciaCat
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To: Big Guy and Rusty 99
He did his job well enough
Then why the FR article? Perhaps his "job" should include polite conversation, not rants at "cornered" customers ... just an idea.
83 posted on 01/08/2003 10:15:42 AM PST by Libertina
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Comment #84 Removed by Moderator

To: Big Guy and Rusty 99
Consider the source. That hack is a good example of a wild-eyed, bleeding-heart Liberal Dimocrat. He probably blew your tip on crack!
85 posted on 01/08/2003 10:17:04 AM PST by Destructor
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To: Big Guy and Rusty 99
I don't know if the Governor was a pub or a dim back then . . .

Robert Graham, thirty-eighth governor of Florida, (D), 1979 to 1987.

Still, 436 wasn't a ghost highway. It was as crowded and busy as it is now.

86 posted on 01/08/2003 10:18:23 AM PST by RepoGirl
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To: Big Guy and Rusty 99
The cabbie was awfully close to democrat party propaganda wasn't he... How is that, I wonder!?... As a matter of fact he was SO close it was uncanny... Canny is what Republican are NOT.. OR... the two unheard words in Washingtom D.C. would be heard more often at ALL.

Socialism and Communism....
Since Socialism "IS" Communism maybe thats why!..

87 posted on 01/08/2003 10:19:11 AM PST by hosepipe
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To: A tall man in a cowboy hat
When you put Gov employees in charge of anything what do you expect? I cannot speak from personal experience onto the grabbing and what not. I must say this though NOTHING he can do is going to satisfy everyone but you tell me this; Name me one other president other than Lincoln who has had a more difficult presidency than this one. Truman doesn't come close either does Nixon because we could see the face of our enemies and could identify them. How would you purpose that we are safe? If he does not do enough and another attack happens then he is blamed for it. When he does do what he has done then it's all about our Civil Liberties. Nothing will satify those that do not wish to meet some halfway. But tell me this; have you seen another attack such as 9/11 since these security measures have been put into place?
88 posted on 01/08/2003 10:22:37 AM PST by AbsoluteJustice
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To: Big Guy and Rusty 99
1) Until a Howard Mcghee CD is made illegal, I am safe.

Your membership to Free Republic alone effectively categorizes you for political consideration. We have politicians in office right now that have used the IRS and other government agencies to harass political opponents, some of these people seek the presidency. This is from 1997, before he was personally Big Brother:

By Senator John Ashcroft Republican, Missouri

Chairman of the Senate Commerce Subcommittee on Consumer Affairs, Foreign Commerce and Tourism

[Senator Ashcroft takes issue with administration views on the Internet and the use of encryption technology.]

USIA Electronic Journal, Vol. 2, No. 4, October 1997

excerpt:

"The FBI wants access to decode, digest, and discuss financial transactions, personal e-mail, and proprietary information sent abroad -- all in the name of national security. To accomplish this, President Clinton would like government agencies to have the keys for decoding all exported U.S. software and Internet communications.

This proposed policy raises obvious concerns about Americans' privacy, in addition to tampering with the competitive advantage that our U.S. software companies currently enjoy in the field of encryption technology. Not only would Big Brother be looming over the shoulders of international cyber-surfers, but the administration threatens to render our state-of-the-art computer software engineers obsolete and unemployed.

There is a concern that the Internet could be used to commit crimes and that advanced encryption could disguise such activity. However, we do not provide the government with phone jacks outside our homes for unlimited wiretaps. Why, then, should we grant government the Orwellian capability to listen at will and in real time to our communications across the Web?"

Wrong address cases get thrown out of court in a hardbeat. The guilty are punished, the innocent absolved.

Sometimes the innocent are buried instead. Makes the cops mistake a little more difficult to live with.

89 posted on 01/08/2003 10:24:01 AM PST by Gunslingr3
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To: inquest
MAPP V. OHIO (1961)

MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE WHITTAKER join, dissenting.

In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is one element that should enter into deciding whether a past decision of this Court should be overruled. Apart from that I also believe that the Wolf rule represents sounder Constitutional doctrine than the new rule which now replaces it.

I.
From the Court's statement of the case one would gather that the central, if not controlling, issue on this appeal is whether illegally state-seized evidence is Constitutionally admissible in a state prosecution, an issue which would of course face us with the need for re-examining Wolf. However, such is not the situation. For, although that question was indeed raised here and below among appellant's subordinate points, the new and [367 U.S. 643, 673] pivotal issue brought to the Court by this appeal is whether 2905.34 of the Ohio Revised Code making criminal the mere knowing possession or control of obscene material,
1 and under which appellant has been convicted, is consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.
2 That was the principal issue which was decided by the Ohio Supreme Court,
3 which was tendered by appellant's Jurisdictional Statement,
4 and which was briefed
5 and argued
6 in this Court. [367 U.S. 643, 674]

In this posture of things, I think it fair to say that five members of this Court have simply "reached out" to overrule Wolf. With all respect for the views of the majority, and recognizing that stare decisis carries different [367 U.S. 643, 675] weight in Constitutional adjudication than it does in nonconstitutional decision, I can perceive no justification for regarding this case as an appropriate occasion for re-examining Wolf.

The action of the Court finds no support in the rule that decision of Constitutional issues should be avoided wherever possible. For in overruling Wolf the Court, instead of passing upon the validity of Ohio's 2905.34, has simply chosen between two Constitutional questions. Moreover, I submit that it has chosen the more difficult and less appropriate of the two questions. The Ohio statute which, as construed by the State Supreme Court, punishes knowing possession or control of obscene material, irrespective of the purposes of such possession or control (with exceptions not here applicable) 7 and irrespective of whether the accused had any reasonable opportunity to rid himself of the material after discovering that it was obscene, 8 surely presents a Constitutional [367 U.S. 643, 676] question which is both simpler and less far-reaching than the question which the Court decides today. It seems to me that justice might well have been done in this case without overturning a decision on which the administration of criminal law in many of the States has long justifiably relied.

Since the demands of the case before us do not require us to reach the question of the validity of Wolf, I think this case furnishes a singularly inappropriate occasion for reconsideration of that decision, if reconsideration is indeed warranted. Even the most cursory examination will reveal that the doctrine of the Wolf case has been of continuing importance in the administration of state criminal law. Indeed, certainly as regards its "non-exclusionary" aspect, Wolf did no more than articulate the then existing assumption among the States that the federal cases enforcing the exclusionary rule "do not bind [the States], for they construe provisions of the Federal Constitution, the Fourth and Fifth Amendments, not applicable to the States." People v. Defore, 242 N. Y. 13, 20, 150 N. E. 585, 587. Though, of course, not reflecting the full measure of this continuing reliance, I find that during the last three Terms, for instance, the issue of the inadmissibility of illegally state-obtained evidence appears on an average of about fifteen times per Term just in the in forma pauperis cases summarily disposed of by us. This would indicate both that the issue which is now being decided may well have untoward practical ramifications respecting state cases long since disposed of in reliance on Wolf, and that were we determined to re-examine that doctrine we would not lack future opportunity.

The occasion which the Court has taken here is in the context of a case where the question was briefed not at all and argued only extremely tangentially. The unwisdom of overruling Wolf without full-dress argument [367 U.S. 643, 677] is aggravated by the circumstance that that decision is a comparatively recent one (1949) to which three members of the present majority have at one time or other expressly subscribed, one to be sure with explicit misgivings. 9 I would think that our obligation to the States, on whom we impose this new rule, as well as the obligation of orderly adherence to our own processes would demand that we seek that aid which adequate briefing and argument lends to the determination of an important issue. It certainly has never been a postulate of judicial power that mere altered disposition, or subsequent membership on the Court, is sufficient warrant for overturning a deliberately decided rule of Constitutional law.

Thus, if the Court were bent on reconsidering Wolf, I think that there would soon have presented itself an appropriate opportunity in which we could have had the benefit of full briefing and argument. In any event, at the very least, the present case should have been set down for reargument, in view of the inadequate briefing and argument we have received on the Wolf point. To all intents and purposes the Court's present action amounts to a summary reversal of Wolf, without argument.

I am bound to say that what has been done is not likely to promote respect either for the Court's adjudicatory process or for the stability of its decisions. Having been unable, however, to persuade any of the majority to a different procedural course, I now turn to the merits of the present decision. [367 U.S. 643, 678]

II.
Essential to the majority's argument against Wolf is the proposition that the rule of Weeks v. United States, 232 U.S. 383 , excluding in federal criminal trials the use of evidence obtained in violation of the Fourth Amendment, derives not from the "supervisory power" of this Court over the federal judicial system, but from Constitutional requirement. This is so because no one, I suppose, would suggest that this Court possesses any general supervisory power over the state courts. Although I entertain considerable doubt as to the soundness of this foundational proposition of the majority, cf. Wolf v. Colorado, 338 U.S., at 39 -40 (concurring opinion), I shall assume, for present purposes, that the Weeks rule "is of constitutional origin."

At the heart of the majority's opinion in this case is the following syllogism:
(1) the rule excluding in federal criminal trials evidence which is the product of an illegal search and seizure is "part and parcel" of the Fourth Amendment;
(2) Wolf held that the "privacy" assured against federal action by the Fourth Amendment is also protected against state action by the Fourteenth Amendment; and
(3) it is therefore "logically and constitutionally necessary" that the Weeks exclusionary rule should also be enforced against the States. 10

This reasoning ultimately rests on the unsound premise that because Wolf carried into the States, as part of "the concept of ordered liberty" embodied in the Fourteenth Amendment, the principle of "privacy" underlying the Fourth Amendment ( 338 U.S., at 27 ), it must follow that whatever configurations of the Fourth Amendment have been developed in the particularizing federal precedents are likewise to be deemed a part of "ordered liberty," [367 U.S. 643, 679] and as such are enforceable against the States. For me, this does not follow at all.

It cannot be too much emphasized that what was recognized in Wolf was not that the Fourth Amendment as such is enforceable against the States as a facet of due process, a view of the Fourteenth Amendment which, as Wolf itself pointed out ( 338 U.S., at 26 ), has long since been discredited, but the principle of privacy "which is at the core of the Fourth Amendment." (Id., at 27.) It would not be proper to expect or impose any precise equivalence, either as regards the scope of the right or the means of its implementation, between the requirements of the Fourth and Fourteenth Amendments. For the Fourth, unlike what was said in Wolf of the Fourteenth, does not state a general principle only; it is a particular command, having its setting in a pre-existing legal context on which both interpreting decisions and enabling statutes must at least build.

Thus, even in a case which presented simply the question of whether a particular search and seizure was constitutionally "unreasonable" - say in a tort action against state officers - we would not be true to the Fourteenth Amendment were we merely to stretch the general principle of individual privacy on a Procrustean bed of federal precedents under the Fourth Amendment. But in this instance more than that is involved, for here we are reviewing not a determination that what the state police did was Constitutionally permissible (since the state court quite evidently assumed that it was not), but a determination that appellant was properly found guilty of conduct which, for present purposes, it is to be assumed the State could Constitutionally punish. Since there is not the slightest suggestion that Ohio's policy is "affirmatively to sanction . . . police incursion into privacy" ( 338 U.S., at 28 ), compare Marcus v. Search Warrants, post, p. 717, what the Court is now doing is to impose [367 U.S. 643, 680] upon the States not only federal substantive standards of "search and seizure" but also the basic federal remedy for violation of those standards. For I think it entirely clear that the Weeks exclusionary rule is but a remedy which, by penalizing past official misconduct, is aimed at deterring such conduct in the future.

I would not impose upon the States this federal exclusionary remedy. The reasons given by the majority for now suddenly turning its back on Wolf seem to me notably unconvincing.

First, it is said that "the factual grounds upon which Wolf was based" have since changed, in that more States now follow the Weeks exclusionary rule than was so at the time Wolf was decided. While that is true, a recent survey indicates that at present one-half of the States still adhere to the common-law non-exclusionary rule, and one, Maryland, retains the rule as to felonies. Berman and Oberst, Admissibility of Evidence Obtained by an Unconstitutional Search and Seizure, 55 N. W. L. Rev. 525, 532-533. But in any case surely all this is beside the point, as the majority itself indeed seems to recognize. Our concern here, as it was in Wolf, is not with the desirability of that rule but only with the question whether the States are Constitutionally free to follow it or not as they may themselves determine, and the relevance of the disparity of views among the States on this point lies simply in the fact that the judgment involved is a debatable one. Moreover, the very fact on which the majority relies, instead of lending support to what is now being done, points away from the need of replacing voluntary state action with federal compulsion.

The preservation of a proper balance between state and federal responsibility in the administration of criminal justice demands patience on the part of those who might like to see things move faster among the States in this respect. Problems of criminal law enforcement vary [367 U.S. 643, 681] widely from State to State. One State, in considering the totality of its legal picture, may conclude that the need for embracing the Weeks rule is pressing because other remedies are unavailable or inadequate to secure compliance with the substantive Constitutional principle involved. Another, though equally solicitous of Constitutional rights, may choose to pursue one purpose at a time, allowing all evidence relevant to guilt to be brought into a criminal trial, and dealing with Constitutional infractions by other means. Still another may consider the exclusionary rule too rough-and-ready a remedy, in that it reaches only unconstitutional intrusions which eventuate in criminal prosecution of the victims. Further, a State after experimenting with the Weeks rule for a time may, because of unsatisfactory experience with it, decide to revert to a non-exclusionary rule. And so on. From the standpoint of Constitutional permissibility in pointing a State in one direction or another, I do not see at all why "time has set its face against" the considerations which led Mr. Justice Cardozo, then chief judge of the New York Court of Appeals, to reject for New York in People v. Defore, 242 N. Y. 13, 150 N. E. 585, the Weeks exclusionary rule. For us the question remains, as it has always been, one of state power, not one of passing judgment on the wisdom of one state course or another. In my view this Court should continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems in criminal law enforcement.

Further, we are told that imposition of the Weeks rule on the States makes "very good sense," in that it will promote recognition by state and federal officials of their "mutual obligation to respect the same fundamental criteria" in their approach to law enforcement, and will avoid "`needless conflict between state and federal courts.'" Indeed the majority now finds an incongruity [367 U.S. 643, 682] in Wolf's discriminating perception between the demands of "ordered liberty" as respects the basic right of "privacy" and the means of securing it among the States. That perception, resting both on a sensitive regard for our federal system and a sound recognition of this Court's remoteness from particular state problems, is for me the strength of that decision.

An approach which regards the issue as one of achieving procedural symmetry or of serving administrative convenience surely disfigures the boundaries of this Court's functions in relation to the state and federal courts. Our role in promulgating the Weeks rule and its extensions in such cases as Rea, Elkins, and Rios 11 was quite a different one than it is here. There, in implementing the Fourth Amendment, we occupied the position of a tribunal having the ultimate responsibility for developing the standards and procedures of judicial administration within the judicial system over which it presides. Here we review state procedures whose measure is to be taken not against the specific substantive commands of the Fourth Amendment but under the flexible contours of the Due Process Clause. I do not believe that the Fourteenth Amendment empowers this Court to mould state remedies effectuating the right to freedom from "arbitrary intrusion by the police" to suit its own notions of how things should be done, as, for instance, the California Supreme Court did in People v. Cahan, 44 Cal. 2d 434, 282 P.2d 905, with reference to procedures in the California courts or as this Court did in Weeks for the lower federal courts.

A state conviction comes to us as the complete product of a sovereign judicial system. Typically a case will have been tried in a trial court, tested in some final appellate [367 U.S. 643, 683] court, and will go no further. In the comparatively rare instance when a conviction is reviewed by us on due process grounds we deal then with a finished product in the creation of which we are allowed no hand, and our task, far from being one of over-all supervision, is, speaking generally, restricted to a determination of whether the prosecution was Constitutionally fair. The specifics of trial procedure, which in every mature legal system will vary greatly in detail, are within the sole competence of the States. I do not see how it can be said that a trial becomes unfair simply because a State determines that evidence may be considered by the trier of fact, regardless of how it was obtained, if it is relevant to the one issue with which the trial is concerned, the guilt or innocence of the accused. Of course, a court may use its procedures as an incidental means of pursuing other ends than the correct resolution of the controversies before it. Such indeed is the Weeks rule, but if a State does not choose to use its courts in this way, I do not believe that this Court is empowered to impose this much-debated procedure on local courts, however efficacious we may consider the Weeks rule to be as a means of securing Constitutional rights.

Finally, it is said that the overruling of Wolf is supported by the established doctrine that the admission in evidence of an involuntary confession renders a state conviction Constitutionally invalid. Since such a confession may often be entirely reliable, and therefore of the greatest relevance to the issue of the trial, the argument continues, this doctrine is ample warrant in precedent that the way evidence was obtained, and not just its relevance, is Constitutionally significant to the fairness of a trial. I believe this analogy is not a true one. The "coerced confession" rule is certainly not a rule that any illegally obtained statements may not be used in evidence. I would suppose that a statement which is procured during [367 U.S. 643, 684] a period of illegal detention, McNabb v. United States, 318 U.S. 332 , is, as much as unlawfully seized evidence, illegally obtained, but this Court has consistently refused to reverse state convictions resting on the use of such statements. Indeed it would seem the Court laid at rest the very argument now made by the majority when in Lisenba v. California, 314 U.S. 219 , a state-coerced confession case, it said (at 235):

"It may be assumed [that the] treatment of the petitioner [by the police] . . . deprived him of his liberty without due process and that the petitioner would have been afforded preventive relief if he could have gained access to a court to seek it.

"But illegal acts, as such, committed in the course of obtaining a confession . . . do not furnish an answer to the constitutional question we must decide. . . . The gravamen of his complaint is the unfairness of the use of his confessions, and what occurred in their procurement is relevant only as it bears on that issue." (Emphasis supplied.)

The point, then, must be that in requiring exclusion of an involuntary statement of an accused, we are concerned not with an appropriate remedy for what the police have done, but with something which is regarded as going to the heart of our concepts of fairness in judicial procedure. The operative assumption of our procedural system is that "Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby the accused was interrogated in secret for hours on end." Watts v. Indiana, 338 U.S. 49, 54 . See Rogers v. Richmond, 365 U.S. 534, 541 . The pressures brought to bear against an accused leading to a confession, unlike an unconstitutional violation of privacy, do not, apart [367 U.S. 643, 685] from the use of the confession at trial, necessarily involve independent Constitutional violations. What is crucial is that the trial defense to which an accused is entitled should not be rendered an empty formality by reason of statements wrung from him, for then "a prisoner . . . [has been] made the deluded instrument of his own conviction." 2 Hawkins, Pleas of the Crown (8th ed., 1824), c. 46, 34. That this is a procedural right, and that its violation occurs at the time his improperly obtained statement is admitted at trial, is manifest. For without this right all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police. This, and not the disciplining of the police, as with illegally seized evidence, is surely the true basis for excluding a statement of the accused which was unconstitutionally obtained. In sum, I think the coerced confession analogy works strongly against what the Court does today.

In conclusion, it should be noted that the majority opinion in this case is in fact an opinion only for the judgment overruling Wolf, and not for the basic rationale by which four members of the majority have reached that result. For my Brother BLACK is unwilling to subscribe to their view that the Weeks exclusionary rule derives from the Fourth Amendment itself (see ante, p. 661), but joins the majority opinion on the premise that its end result can be achieved by bringing the Fifth Amendment to the aid of the Fourth (see ante, pp. 662-665). 12 On that score I need only say that whatever the validity of [367 U.S. 643, 686] the "Fourth-Fifth Amendment" correlation which the Boyd case ( 116 U.S. 616 ) found, see 8 Wigmore, Evidence (3d ed. 1940), 2184, we have only very recently again reiterated the long-established doctrine of this Court that the Fifth Amendment privilege against self-incrimination is not applicable to the States. See Cohen v. Hurley, 366 U.S. 117 .

I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.

[ Footnote 1 ] The material parts of that law are quoted in note 1 of the Court's opinion. Ante, p. 643.

[ Footnote 2 ] In its note 3, ante, p. 646, the Court, it seems to me, has turned upside down the relative importance of appellant's reliance on the various points made by him on this appeal.

[ Footnote 3 ] See 170 Ohio St. 427, 166 N. E. 2d 387. Because of the unusual provision of the Ohio Constitution requiring "the concurrence of at least all but one of the judges" of the Ohio Supreme Court before a state law is held unconstitutional (except in the case of affirmance of a holding of unconstitutionality by the Ohio Court of Appeals), Ohio Const., Art. IV, 2, the State Supreme Court was compelled to uphold the constitutionality of 2905.34, despite the fact that four of its seven judges thought the statute offensive to the Fourteenth Amendment.

[ Footnote 4 ] Respecting the "substantiality" of the federal questions tendered by this appeal, appellant's Jurisdictional Statement contained the following:

"The Federal questions raised by this appeal are substantial for the following reasons:

"The Ohio Statute under which the defendant was convicted violates one's sacred right to own and hold property, which has been held inviolate by the Federal Constitution. The right of the individual `to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to be a clear infringement of the constitutional rights of the individual' (Justice Herbert's dissenting Opinion, Appendix `A'). Many convictions have followed that of the defendant in the State Courts of Ohio based upon this very same statute. Unless this Honorable Court hears this matter and determines once and for all [367 U.S. 643, 674] that the Statute is unconstitutional as defendant contends, there will be many such appeals. When Sections 2905.34, 2905.37 and 3767.01 of the Ohio Revised Code [the latter two Sections providing exceptions to the coverage of 2905.34 and related provisions of Ohio's obscenity statutes] are read together, . . . they obviously contravene the Federal and State constitutional provisions; by being convicted under the Statute involved herein, and in the manner in which she was convicted, Defendant-Appellant has been denied due process of law; a sentence of from one (1) to seven (7) years in a penal institution for alleged violation of this unconstitutional section of the Ohio Revised Code deprives the defendant of her right to liberty and the pursuit of happiness, contrary to the Federal and State constitutional provisions, for circumstances which she herself did not put in motion, and is a cruel and unusual punishment inflicted upon her contrary to the State and Federal Constitutions."

[ Footnote 5 ] The appellant's brief did not urge the overruling of Wolf. Indeed it did not even cite the case. The brief of the appellee merely relied on Wolf in support of the State's contention that appellant's conviction was not vitiated by the admission in evidence of the fruits of the alleged unlawful search and seizure by the police. The brief of the American and Ohio Civil Liberties Unions, as amici, did in one short concluding paragraph of its argument "request" the Court to re-examine and overrule Wolf, but without argumentation. I quote in full this part of their brief:

"This case presents the issue of whether evidence obtained in an illegal search and seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has taken on this issue in Wolf v. Colorado, 338 U.S. 25 . It is our purpose by this paragraph to respectfully request that this Court re-examine this issue and conclude that the ordered liberty concept guaranteed to persons by the due process clause of the Fourteenth Amendment necessarily requires that evidence illegally obtained in violation thereof, not be admissible in state criminal proceedings."

[ Footnote 6 ] Counsel for appellant on oral argument, as in his brief, did not urge that Wolf be overruled. Indeed, when pressed by questioning from the bench whether he was not in fact urging us to overrule Wolf, counsel expressly disavowed any such purpose.

[ Footnote 7 ] "2905.37 LEGITIMATE PUBLICATIONS NOT OBSCENE.

"Sections 2905.33 to 2905.36, inclusive, of the Revised Code do not affect teaching in regularly chartered medical colleges, the publication of standard medical books, or regular practitioners of medicine or druggists in their legitimate business, nor do they affect the publication and distribution of bona fide works of art. No articles specified in sections 2905.33, 2905.34, and 2905.36 of the Revised Code shall be considered a work of art unless such article is made, published, and distributed by a bona fide association of artists or an association for the advancement of art whose demonstrated purpose does not contravene sections 2905.06 to 2905.44, inclusive, of the Revised Code, and which is not organized for profit."

3767.01 (C)

"This section and sections 2905.34, . . . 2905.37 . . . of the Revised Code shall not affect . . . any newspaper, magazine, or other publication entered as second class matter by the post-office department."

[ Footnote 8 ] The Ohio Supreme Court, in its construction of 2905.34, controlling upon us here, refused to import into it any other exceptions than those expressly provided by the statute. See note 7, supra. Instead it held that "If anyone looks at a book and finds it lewd, he is forthwith, under this legislation, guilty . . . ."

[ Footnote 9 ] See Wolf v. Colorado, 338 U.S., at 39 -40; Irvine v. California. 347 U.S. 128, 133 -134, and at 138-139. In the latter case, decided in 1954, Mr. Justice Jackson, writing for the majority, said (at p. 134): "We think that the Wolf decision should not be overruled, for the reasons so persuasively stated therein." Compare Schwartz v. Texas. 344 U.S. 199 , and Stefanelli v. Minard, 342 U.S. 117 , in which the Wolf case was discussed and in no way disapproved. And see Pugach v. Dollinger, 365 U.S. 458 , which relied on Schwartz.

[ Footnote 10 ] Actually, only four members of the majority support this reasoning. See pp. 685-686, infra.

[ Footnote 11 ] Rea v. United States, 350 U.S. 214 ; Elkins v. United States, 364 U.S. 206 ; Rios v. United States, 364 U.S. 253 .

[ Footnote 12 ] My Brother STEWART concurs in the Court's judgment on grounds which have nothing to do with Wolf. [367 U.S. 643, 687]

90 posted on 01/08/2003 10:24:05 AM PST by Big Guy and Rusty 99 (More coffins, Warden?)
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To: FeliciaCat
Damn space aliens, tinfoil helmet will help.
91 posted on 01/08/2003 10:26:08 AM PST by Big Guy and Rusty 99 (More coffins, Warden?)
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To: hosepipe
When he was talking about right wing talk radio, I thought "hmmmm . . . Dasshole, talking points, he must subscribe to his newsletter."
92 posted on 01/08/2003 10:28:08 AM PST by Big Guy and Rusty 99 (More coffins, Warden?)
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To: Gunslingr3
If they are listening right now, "I'm sorry I didn't vote for your father in 1992. I was recovering for liberalism and voted Perot. If it gives you any comfort, I voted for you in 2002 and for your brother in 2002. Go Yale!"
93 posted on 01/08/2003 10:30:52 AM PST by Big Guy and Rusty 99 (More coffins, Warden?)
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To: RepoGirl
I didn't think the FL Governor back then. As for the supposed deadlands of 436, I remember you mention MORE independant businesses in 1980's Orlando with Reagan.
94 posted on 01/08/2003 10:39:22 AM PST by Big Guy and Rusty 99 ("I think I am touching it, yes?")
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To: Big Guy and Rusty 99
Ya done good. It's just scary to think that guys like that vote.
95 posted on 01/08/2003 10:40:21 AM PST by beckett
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To: beckett
Stupid is as stupid does.
96 posted on 01/08/2003 10:46:12 AM PST by Big Guy and Rusty 99 ("I think I am touching it, yes?")
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To: Big Guy and Rusty 99
I didn't think the FL Governor was a pub back then. duh? My name is Big Guy and Rusty 99 and I'm a big dumb baby.
97 posted on 01/08/2003 10:47:44 AM PST by Big Guy and Rusty 99 ("I think I am touching it, yes?")
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To: gopwhit
I've had the same thing happen to me, and it does alot. I always give the same exact answer. Your right, If I had more money then I could use, I'd just spend, yea sure, it provide jobs for the people who make things and the people who sell things, but by giving it to the government instead, I'll be supporting those same people by paying for there now needed unemployment and the welfare there gonna have no choice but to go on.
98 posted on 01/08/2003 11:26:23 AM PST by Sonny M (Confuse the left with scare tacticts, use common sense, they fear it.)
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To: gopwhit
I've had the same thing happen to me, and it does alot. I always give the same exact answer. Your right, If I had more money then I could use, I'd just spend, yea sure, it provide jobs for the people who make things and the people who sell things, but by giving it to the government instead, I'll be supporting those same people by paying for there now needed unemployment and the welfare there gonna have no choice but to go on.
99 posted on 01/08/2003 11:27:39 AM PST by Sonny M (Confuse the left with scare tactics, use common sense, they fear it.)
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To: AbsoluteJustice
who do you know personally that is in litigation because their Civil Liberties have been stripped?

Nobody. I also didn't personally know anyone who was killed in the 9/11 attacks, so I guess that wasn't a big deal either.

CIA/FBI pre 9/11 had their hands tied down so tight out of fear of the next commie ACLU lawsuit concerning Civil Liberites that they could not even investigate a known terrorist out of fear of the next whack job lawsuit.

That's a problem with political correctness, not the existence of civil liberties.

Please spare me the great Gestapo. We are in good hands now.

Will we be in good hands if Hillary gets enough dead voters to put her in office in 2008?

100 posted on 01/08/2003 11:28:03 AM PST by ThinkDifferent
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