I would like to tell you all a story... a Christmas story ... A Christmas story about Santa Claus.
I call this story,
"Santa Claus and His Numerous Violations of the Fourth, Fifth and Sixth Amendments to the U.S. Constitution."You all know the song
"He sees you when you're sleeping, he knows when you're awake, he knows if you've been bad or good so be good for goodness sake..."Unfortuantely for Santa Claus, acting as he does in a quasi-state capacity as the leader of a sovereign territory,
(and his involvement in nuclear disarmament activities), his warrantless searching of children's bedrooms not only represent nearly an
a priori violation of
Fourth Amendment protections against such intrusion, but at least in the state of California, there are several Penal Code sections that specifically prohibit non-guardian adults from gathering information about children
(c.f. PC §637.9).
To begin, the act of such intrusion is itself prohibited, but then this allegedly jolly old elf uses evidence gathered without probable cause in this illegal fashion to pronounce summary judgment
(we'll get to due process in a minute) in violation of the
"fruit of the poisoned tree" doctrine in the exclusionary rule.
But even if he met the hurdles of fourth amendment jurisprudence for his no-knock entries of houses without any judicial oversight, he clearly runs afoul of the
Fifth Amendment to the Constitution.
For instance, in the case of
Griswold v. Connecticut, 381 U.S. 479 (1965) Justice Douglas writes for the majority:
"The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment."
And since we deem Santa to be acting in at least a quasi state actor role, we feel his activities are covered by the Fifth's protections of a "zone of privacy." And to reiterate, in the state of California, the penal code is especially protective of children given their status as the most vulnerable in our society to abuse and harm.
But let's pretend for the moment that the exigencies of the fourth and fifth amendments are met. Easily the most severe violations of constitutional rights are Santa's blanket disregard for due process as protected by the
Sixth Amendment.
I don't even know where to start with this one. I mean, starting from his inability to prove-up his apparently self-appointed
jurisdiction over all the children (who I might add, are still considered citizens, with all rights thereunto pertaining) of the United States.
Then there is the issue of judgment being pronounced on these children without any form of hearing or judicial process, much less giving children, or their parents, guardians, ad litems or other legal representatives an opportunity to make a case on their behalf.
We don't even want to go into the whole problem with his judgment being pronounced
ex cathedra without any statutory authority for leaving lumps of coal in stockings (we won't even go into the
CEQA rules about unregulated distribution of bisthmus coal in a residential setting...)
So from all of us here at the MojoWire:
van.mojo, Dr. Strych9, Sean we wish all of you (even the asshats who come by) a very Merry Christmas.
legal disclaimer
From us ("the wishors") to you ("hereinafter called the wishee"):
Please accept without obligation, explicit or implicit, our best wishes for an environmentally conscious, socially responsible, politically correct, low stress, non-addictive, gender neutral, celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion or secular practice of your choice, with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions.
Please also accept, under aforesaid waiver of obligation on your part, our best wishes for a financially successful, personally fulfilling and medically uncomplicated recognition of the onset of this calendar year of the Common Era, but with due respect for the calendars of all cultures or sects, and for the race, creed, colour, age, physical ability, religious faith, choice of computer platform or dietary preference of the wishee.
By accepting this greeting you acknowledge that:
1. This greeting is subject to further clarification or withdrawal at the wishor's discretion.
2. This greeting is freely transferable provided that no alteration shall be made to the original greeting and that the proprietary rights of the wishor are acknowledged.
3. This greeting implies no warranty on the part of the wishors to fulfill these wishes, nor any ability of the wishors to do so, merely a beneficent hope on the part of the wishors that they in fact occur.
4. This greeting may not be enforceable in certain jurisdictions and/or the restrictions herein may not be binding upon certain wishees in certain jurisdictions and is revocable at the sole discretion of the wishors.
5. This greeting is warranted to perform as reasonably may be expected within the usual application of good tidings, for a period of one year or until the issuance of a subsequent holiday greeting, whichever comes first.
6. The wishor warrants this greeting only for the limited replacement of this wish or issuance of a new wish at the sole discretion of the wishor.
Any references in this greeting to "the Lord", "Father Christmas", "Our Saviour", or any other festive figures, whether actual or fictitious, dead or alive, shall not imply any endorsement by or from them in respect of this greeting, and all proprietary rights in any referenced third party names and images are hereby acknowledged.mojo sends
