A Clearer Bill of Rights- Amendment IV

“How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!” -Samuel Adams

When it comes to big government, progressive Statism, words are merely a nuisance that obstruct the growth of government power. When those words have meanings that seek to limit the scheming of Statists abroad, how often do we see them ignore the planing meaning of those words? The Constitution is the penultimate definition of a restraining order on tyranny, but Statists have no problem twisting its words to mean things that no rational person could ever imagine.

Now let’s give at least one caveat here. Some of the language of the Constitution can be a bit confusing. The document was written over 225 years ago, so there are more than a few differences in writings style and word choices. However, these nuances do not nullify the meaning of those words. It simply means that we have to look at the words, and their background, more carefully than Statists would approve.

Unfortunately, 21st century America does not have much more of an attention span than a squirrel; so looking at the words for more than a few seconds does not appear to be an option. What a shame this is; if only we had the ability to read carefully, and think even more carefully, it might not be so difficult to understand what the Constitution is actually saying.

In light of this, I’m going to clarify one of the most important aspects of the Constitution: the Bill of Rights. I will include the original language of each amendment, and below I will give a modern translation that can be clearly understood, leaving no room for Statist misinterpretations.

Amendment IV- 1791

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.

Amendment IV- 2015

The right of the people to be secure in their persons, houses, papers, property, effects, and all other possessions shall never be infringed by warrantless monitoring, searches, or seizures. No warrants shall be issued, except upon probable cause, supported by oath or affirmation, and describing in detail the specific place to be searched, the objects or persons sought after, and only upon conviction shall any person forfeit their right of property. All provisions of this amendment shall apply to all governmental agencies at the state, local, and federal levels.

The subject matter of the Fourth Amendment was the spark that led to the fight for independence. For years following the French and Indian War, the British held a great interest in regulating the colonies. Part of that regulation was a crackdown on smuggling. Unfortunately, the overreaction to the smuggling problem soon led to a revolution problem.

In 1761, one finds what was the greatest defense of the right to be secure from unreasonable search and seizure before the Revolution. James Otis was Advocate-General in Boston, Massachusetts at this time. There came a case where British customs officials had arbitrarily searched property to combat smuggling, through writs of assistance, which were in essence general warrants that allowed any search to be conducted. Otis was not about to defend such an arbitrary power, so he resigned his position and took to the defense of the accused merchants. His oral defense is still one of the most eloquent arguments against arbitrary search powers.

It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book… It is a power that places the liberty of every man in the hands of every petty officer. I say I admit that special Writs of Assistance, to search special places, may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself, before I proceed to other Acts of Parliament.

In the first place, the writ is universal, being directed “to all and singular justices, sheriffs, constables, and all other officers and subjects”; so that, in short, it is directed to every subject in the King’s dominions. Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder any one within the realm.

While Otis lost the case, he won the longer battle, which was over the issue of arbitrary search powers. Sure enough, just 15 years later, the Americans up and told the English that we were never getting back together again.

After the war, the issue of general warrants was not a forgotten issue. During the ratifying conventions of 1787-1788, it was a major issue for the Anti-Federalists in particular. So much so that a special protection against arbitrary search was explicitly written into our Constitution.

It has been 224 years since the ratification of the Bill of Rights, and our right against search and seizure has never been under such heavy attack. However, this was not unpredicted. As far back as 1928, some knew that precedents were being set for complete search powers, contrary to the intent of the Fourth Amendment.

In the case of Olmstead vs. United States, the Supreme Court  held that the use of a wiretap on a telephone conversation did not constitute a violation of the Fourth Amendment because no physical trespass was involved. The Court declined to recognize the right against unreasonable search and seizure to one’s digital communication. In the dissent, Justice Brandeis wrote:

Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. “That places the liberty of every man in the hands of every petty officer” was said by James Otis of much lesser intrusions than these.

Are we not at the point where the Government can indeed reproduce papers in court without removing them from secret drawers? Just ask the NSA, FBI, US Marshals, etc. about that. We are at the point where the Government has the power to go through ALL of your information without ANY sort of physical trespass, or without you even knowing it. That is about as arbitrary as a power can get.

Now granted, this does not happen all the time. But nonetheless, they have the technology to do it, and have been exposed for doing some pretty heinous things, such as bugging computers with spy software, spying on their love interests, and even spying on U.S. allies. This abuse of power has caused a great enmity between the citizens of the United States and its government, and the United States and the rest of the world. Who wants a friend who is constantly spying on them? It is a violation of the most sacred principles of private property, that one’s property is not to be intruded upon unless it has been ordered by court upon a sworn oath that there is exists a reason for doing so.

But post 9/11, apparently we don’t need probable cause, or even reasonable suspicion to collect people’s data. You can be the most law abiding citizen on the face of this planet, and the odds are that some U.S. governmental agency has collected information about you in the name of “national security.”

I’m sorry, I don’t see the national security exception in the Fourth Amendment (but maybe that’s because I’m actually reading the words). Our right to be secure against such searches into our private lives is being violated by multiple agencies on many different levels. This rape of our protections against searches must stop. Data collection of any kind on any American citizen without any sort of reasonable suspicion or probable cause is fundamentally illegal.

A modern translation of the Fourth Amendment clarifies certain parts of it that may have been previously ambiguous (though it’s rather clear to me). Expanding the search and seizures provision to include monitoring, and applying the amendment to all agencies (not just law enforcement), it ensures that fewer abuses will be able to slip past the people and their defenders in court.

This concludes part four of the Clearer Bill of Rights series. Next we will go into detail about another Amendment which involves criminal procedure, one that is often considered a complementary part of the Fourth Amendment: the Fifth Amendment.

Follow Seth on Twitter: @sconnell1776


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