Caminus,
I say that according to your logic, the court must decide in favor of the government since you are not arguing from the principle of law that would order the actions of the police officer, but rather assuming it was legal or moot because evidence of a crime was found after the fact. You opinion amounts to stating that legislation can occur de facto. Such a proposition amounts to anarchy.
That is not according to my logic. Let me apply my logic to your situation. First, here's my logic in action as to the NO:
1) The Church can not produce a "sinful" or "sacrilegious" Mass
2) The New Mass was produced by the Church
3) The New Mass is not "sinful" or "sacrilegious"
I'll apply my logic to your hypothetical:
1) A stop of a vehicle without probable cause is an illegal seizure under the Constitution
2) Vehicle A was stopped without probably cause
3) Vehicle A was stopped illegally under the Constitution
I start from a principle in both cases and apply it to the facts. Using an analogy to your hypothetical, my facts merely establish that Vehicle A was stopped without probable cause. The principle must be applied to determine constitutionality. In other words, the "facts" of Pope VI's promulgation and authorization of the NO, and the subsequent use of it by his successors, the use of the NO to celebrate the Mass by almost all the bishops in union with those popes, these all show the "fact" that the NO is a Mass of the Church, and produced by it -that's all.
The a priori principle, the Church cannot produce a sacrilegious liturgy, the major of the syllogism, applied to these facts, validates the conclusion.
Additionally, the reason why your hypothetical does not apply here is because the very principle at issue invests the agent (the Church) with indefectibility at all times and under all circuмstances with regard to the action at issue, the production of a rite of the Mass. It's a universal, infallible principle: the Church cannot produce a sacrilegious or "in itself sinful Mass." The constitutional principle at issue in your hypothetical does not involve the agent in its definition: the definition of a constitutional search does not include the police as an element of the definition. The principle at issue is simply a search without probable cause is unconstitutional, no matter what agency of the government does it.
So the hypothetical doesn't really apply because the agents (the Church on one hand and the police on the other) and the actions are also very different in that the principle indicates that the Church cannot produce a sacrilegious liturgy while the principle in your hypothetical is not, "the police cannot stop a vehicle unconstitutionally."
The only way your hypothetical would apply to this case is if the principle
was that the police cannot stop a vehicle unconstitutionally. We could then look at the facts and would only have to see if the police stopped the vehicle.
This is exactly what I am doing. As I said above, my facts simply establish that the Church produced the NO. The principle of the Church's Indefectibility indicates that the Church cannot produce a sacrilegious liturgy. I then look at the facts with the principle in hand to see if the Church "produced" the NO, and it has. Therefore . . . you know, and cannot escape I believe, the conclusion.
Now, again, you are attacking my reasoning by saying the Church did not produce the NO. You cannot dispute the major, the a priori principle: the Church cannot produce a sacrilegious liturgy or one "sinful in itself" (Father Scott). Your saying the Church didn't produce it fails utterly if you focus on the "produced," as the "facts" I've brought forward illustrate.
You are thus left (it seems to me) to define Church in a way that excludes Pius VI, JPII, Benedict XVI and all the bishops in union with them who "produced" the NO, and continue to produce it, on Catholic altars all over the world. This is your dilemma: you either deny the Church's visibility or its Indefectibility.
I have no fondness for the NO, Caminus, or for the post-conciliar regime, but whatever God has in mind for us it is in accord with truth, and the SSPX's "the NO is sinful in itself" doesn't accord with it. I therefore begrudgingly can't accord with the SSPX.
In no small way, however, I hope you do in fact come up with an argument to prove me wrong.
DR