The U.S. Supreme Court is currently grappling with the issue of whether an individual arrested for a minor violation may be strip-searched in jail.

The issue came before the Supreme Court by litigator Thomas Goldstein, who brought the case on behalf of Albert Florence. Mr. Florence was arrested on an outstanding warrant for a traffic infraction fine that he already paid in 2005. Mr. Florence was subsequently strip searched in jail. Mr. Goldstein asserted that strip searches may be warranted for people arrested for serious offenses, but said a reasonable suspicion should be required to strip search others. During oral argument, the Court focused on what reasonable suspicion is and how it is established.

As an alternative argument, Justice Antonin Scalia offered an originalist approach, arguing that strip searches were common practice in this country when this country was founded, and thus, should be viewed as outside the scope of the Fourth Amendment’s protections against unreasonable searches and seizures.

In response to Justice Scalia’s originalist approach, one commentator had this clever analysis to offer:

When the country was founded:

* Custody was always given to men in divorces, because the children were presumably needed as workers.
* Perjury was a capital offense. Now, hundreds of thousands of verified cases are routinely ignored in foreclosures.
* Alienation of affection was both a tort and a crime.
* Duels to the death were legal.
* Leaches were a preferred method of doctors.
* Only white, male, land owners could vote.
* Whipping was a common punishment and imprisonment was uncommon since there weren’t enough people to justify watching over prisoners.

If we looked solely to the Founding Father’s (Founding Mothers?) original intent every time we had to interpret the constitution, a black man wouldn’t be President, and the Supreme Court wouldn’t have 3 Jews, a black, and a Puerto Rican woman on it.

A lot of things have evolved over the last 235 years. Apparently, Scalia’s mind isn’t one of them.

By: David Edelstein October 14, 2011.

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