I could not have asked for better timing than to have the massive government illegal surveillance program story break recently. That situation is at its core a 4th Amendment issue.
Maybe you’ve heard the 4th Amendment mentioned on a TV police show where a lawyer was trying to suppress evidence. Here is the text:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Source material and recommended reading: 4th Amendment
Just like last week’s post about the 3rd Amendment, the Declaration of Independence tells us why the 4th Amendment was so important to our founders. Speaking about the King of England, it says in part:
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people.
One such way the people were harassed was via what was known as a “Writ of assistance”. These were also known as general warrants and very broad in scope and duration- they expired 6 months after the King died. The practice was put in place by the King to combat smuggling. As an example, customs officers could search an entire property easily without any notice or giving a reason. Tax collectors used these as well for search and seizure of private property. These actions were considered by some colonists to be an epidemic. The first colony to pass a law against this practice was Massachusetts circa 1756. A great deal of strife ensued, and in what was telling about the practice, the King’s top lawyer, James Otis, resigned in opposition to the practice of general warrants. He later represented some colonists in court, and future president John Adams heard Mr. Otis speak. President Adams considered the speech the spark that ignited the American Revolution.
In the 1776 Virginia Declaration Of Rights, the use of general warrants was prohibited unless they were very specific. Since Thomas Jefferson, who wrote the Declaration of Independence, was from there he used this material for reference.
Once the Constitution was written, the debate was between the federalists, who supported a stronger central government and the anti-federalists, who supported state’s rights and a weaker central government. As a compromise, the Bill of Rights came to be- the first ten amendments to the Constitution.
The 4th Amendment only applied to the federal government until the 14th Amendment with equal protection came along in 1868 and it was applied to the states. It still only applies to the government, not to the private sector. As an example, let’s say a movie theater wants to check large purses for outside food before admitting people. Can they do so? Yes. On the other hand, a police officer doing so needs cause.
In the intervening years, there have been very many court cases to interpret the basic language of the 4th Amendment. One disturbing case involved a couple in Indiana. They had been involved in a prior domestic disturbance. Police responded and confronted the male half of the couple in the parking lot. While he was unruly, no arrest was made and he went to his apartment. Despite seeing the female half was OK, the police forced their way into the apartment and made an arrest. This case went to the Indiana Supreme Court, who ruled that citizens cannot resist an illegal search or seizure, as it is easy nowadays to file a civil suit among other post-arrest remedies. As with anything of this high-profile nature, this decision was met with a legislative reaction- in 2012 the Indiana legislature passed a law nullifying that decision.
To apply this to our lives today at the federal level, we must look at history. The national security issue in the mid 1700’s was smuggling. As a result of this, the King allowed his officers a wide rang of search and seizure powers. Not many people objected. The national security issue now is of course the war on terror, and the 2002 USA PATRIOT Act and subsequent renewals allowed a wide range of search and seizure powers. In the recent news stories, our own government has been seizing certain things such as ALL phone and Internet records from private companies such as Verizon. When ALL records are seized, this illustrates there is no cause to do so and is in complete conflict with the 4th Amendment as written. If you go to renew your driver license in Florida and a few other states, the DMV will seize your personal papers in order to scan them into a database as a result of a federal law called REAL ID- even though there is no cause to believe you are someone else. The premise is that since 19 middle eastern males attacked us in 2001 and they had driver licenses from several states with bogus addresses, the federal government needed to dictate standards.
The recent news stories have spurred a lot of discussion, and led to some politicians calling the person believed responsible for “leaking” the story a traitor. I find it troubling looking at polls that suggest 25 percent or more of Americans have no problem with their own government spying on them without cause. They believe it will “keep us safe” and of course “if you haven’t done anything ‘wrong’, you have nothing to worry about”. The fact is it will make us no safer than having the power bills of your grandmother copied at the DMV or the TSA groping her. It’s my hope these Americans will learn from history before things get worse.