Insurrections often are propagated upon misinformation. So too are the most recent band of domestic terrorist who like to hide behind our most sacred American institutions. In this series, I want to explore the Bill of Rights and why some of the hype and hyperbole thrown around by the extremist is not just wrong but dangerously misguided.
Over the next several weeks, I will discuss the history of our constitutionally protected rights and why Congress chose to codify these and not others. I am not an attorney so I will not go into some of the legal aspects of these amendments, so please don’t ask me if your religious obsession for cordite is protected by Amendment 1 or Amendment 2. I plan to focus on why these amendments exist.
Today, I want to discuss Amendment 4:
In recent years, the protections of the 4th Amendment have become increasingly under siege, not just from our law enforcement agencies but also from corporate interests.
“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.”
Few provisions of the Bill of Rights come so directly out of the experience of the prerevolutionary colonialist than the Fourth Amendment. This addition to the Constitution is a direct response to the Admiralty Courts and “writs of assistance” that were embodied in the Townsend Acts. The American revulsion to these searches stems from the notion that before 1776, most Americans considered themselves to be loyal Englishmen subject to the laws of England. These “writs of assistance” and seizures without due legal process directly violated a fundamental ENGLISH right where “Every man’s house is his castle.” When Parliament cast this right aside, they effectively said that the peoples of America were not equal in status with all other English subjects.
In 1603 a civil court case recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process. In this case civil actions were brought against state officers who raided many homes and other places in search of materials connected with John Wilkes’ polemical pamphlets attacking not only governmental policies but the King himself. The plaintiffs sued because agents had forcibly broken into homes, broke into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In its decision the courts declared the warrant and the behavior it authorized subversive “of all the comforts of society,” and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature “contrary to the genius of the law of England.”
With this precedent, it is easy to see how Americans now being accused of violating laws which they had not say in legislating and often had no part in violating were subject to arbitrary searches which other Englishmen would not have to suffer AND they had on redress for any damages resulting from these searches. In the colonies, it was smuggling rather than sedition that prompted these searches and seizures so Americans were being treated more harshly for less serious offenses. In their zeal to collect taxes and punish people who they disliked, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize “prohibited and uncustomed” goods, and commanding all subjects to assist in these endeavors.
Americans like James Otis challenged these writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. Otis lost his cases and the writs were issued and used, but his arguments were much cited in the colonies and published in many newspapers.
When the Constitution was under debate in the various state legislatures, the power of the Federal government was a serious concern. Many wanted protection against the abuses they had experienced leading up to the Revolutionary War. In order to convince enough states to support the Constitution, promises of explicit protections in the form of a Bill of Rights were made to secure the votes needed to accept the Constitution. One of the critical protections everyone sought was protection from illegal searches and seizures. This is why Congress ratified the 4th Amendment to the Constitution.
Of course, today we see that this fundamental right is again in peril. “Stop and Frisk” laws authorize police to act in much the same way as the Admiralty’s writs of assistance. No justification or cause is needed other than the policeman’s suspicion. In addition to this, non-government, corporate searches occur daily. Companies like Google don’t just scrutinize what we send over the internet but also frequently invade our homes and search our papers electronically and even place bugs and cameras in our communities to invade our homes.
Once again, the INTENT of the 4th Amendment is clear. Its practice does not always live up to the promise.
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Michael Carver -- Historical Interpreter/Reenactor 